Barnard v. Rowland

• Decision Date: 02 March 1999
• Docket Number: No. COA97-1411.,COA97-1411.
• Citation: 132 NC App. 416,512 S.E.2d 458
• Court: North Carolina Court of Appeals
• Parties: Everette B. BARNARD and wife, Diane S. Barnard, Plaintiffs, v. Bobby ROWLAND, d/b/a Bobby Rowland Timber & Logging, Defendant & Third-Party Plaintiff, v. James M. FIFE and wife, Michelle H. Fife, Third-Party Defendants.

512 S.E.2d 458

132 NC App. 416

Everette B. BARNARD and wife, Diane S. Barnard, Plaintiffs, v. Bobby ROWLAND, d/b/a Bobby Rowland Timber & Logging, Defendant & Third-Party Plaintiff, v. James M. FIFE and wife, Michelle H. Fife, Third-Party Defendants.

No. COA97-1411.

Court of Appeals of North Carolina.

March 2, 1999.

J. Stephen Gray, Salisbury, for defendant and third-party plaintiff.

B.S. Brown, Jr., Kannapolis, for plaintiffs.

Inge and Doran, by Michael Doran, Salisbury, for third-party defendants.

JOHN, Judge.

Defendant and third-party plaintiff Bobby Rowland (Rowland) appeals the trial court's denial of his motions pursuant to N.C.G.S. § 1A-1, Rule 50(b) (1990) for directed verdict and for judgment notwithstanding the verdict (JNOV). Rowland also contends the court erred by: (1) granting the directed verdict motion of plaintiffs Everette and Diane Barnard (the Barnards) on Rowland's claim of tortious interference of contract; and (2) failing to instruct the jury properly on the doctrines of impossibility of performance and prevention, and contribution. For the reasons discussed herein, we affirm in part, vacate in part, and remand with further instructions.

Pertinent facts and procedural history include the following: In early March 1995, Rowland entered into an oral agreement with third-party defendants James and Michelle Fife (the Fifes) for cutting and removal of timber located on the Fifes' property in Rowan County. Under the agreement, Rowland paid the Fifes $3,200.00 for a quantity of timber cut from their property, the exact amount of timber logged being disputed by the parties.

The Fifes, whose property adjoined that of the Barnards, did not designate to Rowland the precise boundaries of their tract. Regarding the Fife/Barnard boundary, however, Mr. Fife informed Rowland that a barbed and electric wire fence approximated the property line, and that if Rowland remained five to ten feet inside the fence, he "would definitely be all right."

Rowland commenced logging 14 March 1995. The next day, Mr. Barnard reported to the Rowan County Sheriff's Department (Sheriff's Department) that Rowland had cut or was about to cut three trees on the Barnard property. Although Rowland insisted he had purchased all trees on the Fifes' side of the fence, the fence was "bowed" and did not necessarily conform to the boundary between the Barnard property and that owned by the Fifes. Notwithstanding Mr. Barnard's objections, Rowland felled the three trees.

On 16 March 1995, Mr. Fife requested assistance from the Sheriff's Department in removing Rowland from the Fife property. According to Mr. Fife, Rowland's timbering activities were injuring neighboring properties and his conduct was not in conformance with the verbal agreement. On 18 March 1995, Rowland was escorted from the Fife property, whereupon Mr. Fife blocked the entrance so as to prevent Rowland's return. In all, Rowland felled approximately sixteen trees located completely or partially on Barnard property, including one approximately fifteen feet from the Fife/Barnard boundary.

The Barnards instituted the instant action 24 October 1995, seeking to recover from Rowland the value of the cut timber, the diminished value of their property, and punitive damages. Rowland answered, generally denying the allegations. He also counterclaimed against the Barnards, alleging wrongful interference with the timber contract, and cross-claimed against the Fifes, claiming they materially breached the agreement by "making it impossible for [Rowland] to finish the contract." Further, Rowland asserted a claim for contribution against the Fifes in the event he were to be found liable to the Barnards. The Fifes subsequently counterclaimed against Rowland, alleging breach of the logging agreement.

At trial, Rowland's motions for directed verdict at the conclusion of the Barnards' evidence and at the close of all the evidence were denied. However, the Barnards' motion for directed verdict on Rowland's counterclaim for tortious interference of contract was allowed. The court denied Rowland's requested jury instruction on the doctrine of impossibility of performance and prevention. The court also rejected the Fifes' motion for directed verdict on Rowland's third-party claim for contribution.

Following the jury's award of $1,244.00 to the Barnards as the value of the cut timber and $600.00 in punitive damages, Rowland moved for JNOV. On 17 February 1997, the trial court entered its ruling, declaring in pertinent part:

1) That the amount awarded to plaintiffs for damage to their wood, timber, shrubs or trees be doubled, pursuant to G.S. § 1-539.1.

2) That the plaintiffs have and recover judgment against the defendant in the principle amount of $2,488.00 for damages to trees, etc. and $600.00 for punitive damages.

....

4) That the defendant's motion to set aside the verdict as being against the greater weight of evidence is denied.

Defendant timely appealed 21 February 1997.

I.

As a preliminary matter, we note that each brief submitted herein violates N.C.R.App. P. 26(g) (Rule 26(g)). Rule 26(g) requires documents filed with this Court to appear in "at least 11 point" type, the term "point" referring to the height of a letter, extending from the highest part of any letter to the lowest part. Id.; Lewis v. Craven Regional Medical Center, 122 N.C.App. 143, 147, 468 S.E.2d 269, 273 (1996). Accordingly, a brief may not contain more than sixty-five (65) characters and spaces per line, nor more than twenty-seven (27) lines of double-spaced text per page. See Lewis, 122 N.C.App. at 147, 468 S.E.2d at 273. Although Rule 26(g) does not speak in terms of characters per inch (cpi), a standard not equivalent to point size, "[t]en characters per inch is ... the standard we will apply to the briefs filed with this Court." Id.

Rule 26(g) may also be met by a brief presented in the

same type-setting as used by this Court in its slip opinions—Courier 10 cpi—which insures no more than sixty-five (65) characters per line and twenty-seven (27) lines per page. Courier 10 cpi may be achieved in computer and word processing technology by utilizing no smaller than size twelve (12) Courier or Courier New font.

Howell v. Morton, ___ N.C.App. ___, ___, 508 S.E.2d 804, 806 (1998).

In the case sub judice, all briefs presented to this Court contain in excess of ninety-one (91) characters per line and thus violate Rule 26(g). It should be unnecessary to reiterate that our appellate rules are mandatory, see Wiseman v. Wiseman, 68 N.C.App. 252, 255, 314 S.E.2d 566, 568 (1984), so as to "prevent unfair advantage to any litigant," Lewis, 122 N.C.App. at 147, 468 S.E.2d at 273, and that violation thereof subject an appeal to dismissal. See Wiseman, 68 N.C.App. at 255, 314 S.E.2d at 566. While emphasizing that the ever-increasing volume of materials filed with this Court require uniformity and compliance with the Rules so as to facilitate our disposition of matters before us, we nonetheless elect in this instance to exercise our discretion under N.C.R.App. P. 2 and consider the instant appeal on its merits. However, double costs are assessed, see N.C.R.App. P. 34(b)(2) (court of the appellate division may impose sanction of "double costs"), the first set to be shared equally among the parties, see N.C.R.App. P. 35(a) (if judgment is "modified in any way, costs shall be allowed as directed by the court"), the second to be paid in equal shares by counsel for the parties.

II.

A.

Rowland first argues the trial court erred in denying his motions for directed verdict and JNOV on the issues of trespass and punitive damages and in denying his JNOV motion on the issue of breach of contract. We conclude the latter assignment of error has been waived and that the former is unfounded. The question presented by a defendant's directed verdict motion is whether the evidence, considered in the light most favorable to plaintiff, is sufficient to take the case to the jury and to support a verdict for plaintiff. See Henderson v. Traditional Log Homes, 70 N.C.App. 303, 306, 319 S.E.2d 290, 292,disc. review denied, 312 N.C. 622, 323 S.E.2d 923 (1984). If there is more than a scintilla of evidence "to support plaintiff's prima facie case in all its constituent elements," the motion for directed verdict should be denied. Douglas v. Doub, 95 N.C.App. 505, 511, 383 S.E.2d 423, 426 (1989). Appellate review of a directed verdict is limited to those grounds asserted by the movant before the trial court. See Southern Bell Telephone and Telegraph Co. v. West, 100 N.C.App. 668, 670, 397 S.E.2d 765, 766 (1990),aff'd,328 N.C. 566, 402 S.E.2d 409 (1991).

A JNOV motion is "essentially a renewal of a motion for directed verdict," Smith v. Price, 74 N.C.App. 413, 418, 328 S.E.2d 811, 815 (1985), aff'd in part, rev'd in part on other grounds, 315 N.C. 523, 340 S.E.2d 408 (1986), and thus must be preceded by a motion for directed verdict at the close of all evidence. See Whitaker v. Earnhardt, 289 N.C. 260, 264, 221 S.E.2d 316, 319 (1976). On appeal, we apply the same standard of review as that for a directed verdict. See Northern Nat'l Life Ins. Co. v. Miller Machine Co., 311 N.C. 62, 69, 316 S.E.2d 256, 261 (1984). Notably, "[t]he movant cannot assert grounds [for the JNOV] not included in [his] motion for directed verdict." Love v. Pressley, 34 N.C.App. 503, 509, 239 S.E.2d 574, 580, cert. denied, 294 N.C. 441, 241 S.E.2d 843 (1978).

In the case sub judice, the sole ground asserted for Rowland's directed verdict motion was insufficiency of the evidence supporting the Barnards' claims of trespass and punitive damages. Moreover, Rowland did not contest the sufficiency of the evidence regarding the Fifes' breach of contract counterclaim. As such, appellate review of the trial court's denial of defendant's JNOV motion addressed to that issue has been waived. See Lee v. Bir, 116 N.C.App. 584, 587, 449 S.E.2d 34, 37 (1994), cert. denied...