Hamby v. Thurman Timber Co.

• Decision Date: 17 July 2018
• Docket Number: No. COA17-1371,COA17-1371
• Citation: 818 S.E.2d 318,260 N.C.App. 357
• Court: North Carolina Court of Appeals
• Parties: Derrick HAMBY, Plaintiff, v. THURMAN TIMBER COMPANY, LLC, and Timothy W. Thurman, Defendants-appellees, v. Lloyd Alvis Cline, Third Party Defendant-appellee.

260 N.C.App. 357

818 S.E.2d 318

Derrick HAMBY, Plaintiff,

v.THURMAN TIMBER COMPANY, LLC, and Timothy W. Thurman, Defendants-appellees,

v.Lloyd Alvis Cline, Third Party Defendant-appellee.

No. COA17-1371

Court of Appeals of North Carolina.

Filed: July 17, 2018

Smith Law Group, PLLC, by Matthew L. Spencer and Steven D. Smith, for plaintiff-appellant.

Dean & Gibson, PLLC, Charlotte, by Michael G. Gibson and Michael R. Haigler, for defendants-appellees.

Henson & Talley, LLP, Greensboro, by Karen Strom Talley, for third party defendant-appellee.

ZACHARY, Judge.

Plaintiff Derrick Hamby appeals the trial court's order granting defendants' motion for summary judgment. For the reasons explained herein, we affirm.

Background

On 18 December 2015, plaintiff filed an unverified complaint in which he asserted claims for (1) trespass to land, (2) damage to real property, (3) conversion, and (4) negligence against defendants Timothy Thurman and Thurman Timber Company, LLC. Plaintiff also asked that the court pierce the corporate veil and hold defendant Timothy Thurman personally liable to plaintiff. In his complaint, plaintiff alleged that "[i]n August 2011, [p]laintiff's neighbor ... [Loyd Alvis Cline] hired [d]efendants to perform tree cutting on trees owned by Neighbor." He also alleged that "[d]efendants cut down eight (8) acres of trees on [p]laintiff's property ("Property") that [d]efendant did not have permission to cut."

In June 2010, Cline and Timberland Properties, Inc. entered into a "Timber Purchase and Sales Agreement" for the purchase of certain timber located on Cline's property. Subsequently, Timberland Properties, Inc. assigned the timber rights under the agreement to Thurman Timber Company, LLC. The "Assignment of Timber Deed" provided that Thurman Timber Company, LLC would have until 8 June 2011 "to remove timber from the described property."

The cutting operations on Cline's property occurred during the summer of 2011. Plaintiff had been approached by several individuals, including defendant Timothy Thurman, "to inquire if [he] would be interested in selling timber located on [his] property." In August 2011, plaintiff was informed by Mrs. Cline "that the [d]efendants had cut timber on [his] property ...." After inspecting his property, plaintiff "realized that approximately 8 acres of [his] land had been harvested for timber[.]" As a result, plaintiff filed this action.

On 14 February 2017, defendants moved for summary judgment on all claims, and the parties engaged in discovery. After a hearing on 15 May 2017, the trial court granted defendants' motion for summary judgment as to all of plaintiff's claims, and dismissed the claims with prejudice. Plaintiff now appeals from this order.

Standard of Review

This Court reviews de novo the trial court's ruling on a motion for summary judgment. In re Will of Jones , 362 N.C. 569, 573, 669 S.E.2d 572, 576 (2008). Summary judgment is proper where "the pleadings, depositions, answers to interrogatories, 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) (2017).

Initially, " ‘the burden of establishing the lack of any triable issue of fact’ " rests on the moving party. Draughon v. Harnett County Bd. of Educ. , 158 N.C. App. 208, 212, 580 S.E.2d 732, 735 (2003) (quoting Pacheco v. Rogers & Breece, Inc. , 157 N.C. App. 445, 447, 579 S.E.2d 505, 507 (2003) ). "A defendant may show he is entitled to summary judgment by ‘(1) proving that an essential element of the plaintiff's case is nonexistent, or (2) showing through discovery that the plaintiff cannot produce evidence to support an essential element of his or her claim, or (3) showing the plaintiff cannot surmount an affirmative defense which would bar the claim.’ " Williams v. Advance Auto Parts, Inc. , ––– N.C. App. ––––, ––––, 795 S.E.2d 647, 651 (2017), disc. review denied , 369 N.C. 563, 799 S.E.2d 45 (2017) (quoting Frank v. Funkhouser , 169 N.C. App. 108, 113, 609 S.E.2d 788, 793 (2005) ). "If [the] moving party shows that no genuine issue of material fact exists for trial, the burden shifts to the nonmovant to adduce specific facts establishing a triable issue." Self v. Yelton , 201 N.C. App. 653, 658-59, 688 S.E.2d 34, 38 (2010) (citing Will of Jones , 362 N.C. at 573, 669 S.E.2d at 576 ).

Discussion

On appeal, plaintiff argues that the trial court erred in granting defendants' motion for summary judgment. We address each claim individually.

I. Trespass to Land Claim

Plaintiff argues that the trial court erred in granting defendants' motion for summary judgment on plaintiff's claim of trespass to land, asserting that a genuine issue of material fact existed as to whether Otis Hill Logging was an independent contractor, and that, "even if [d]efendants['] contention that they did not personally or manually remove the timber themselves is true, ... they are liable as a joint tortfeasor ...." We disagree.

As our Supreme Court has stated, " ‘a claim of trespass requires: (1) possession of the property by the plaintiff when the alleged trespass was committed; (2) an unauthorized entry by the defendant; and (3) damage to [the] plaintiff [from the trespass].’ " Singleton v. Haywood Elec. Mbrshp. Corp. , 357 N.C. 623, 627, 588 S.E.2d 871, 874 (2003) (quoting Fordham v. Eason , 351 N.C. 151, 153, 521 S.E.2d 701, 703 (1999) ).

"The general rule is that a company is not liable for the torts of an independent contractor committed in the performance of the contracted work." Coastal Plains Utilities, Inc. v. New Hanover County , 166 N.C. App. 333, 344, 601 S.E.2d 915, 923 (2004) (citing Page v. Sloan , 12 N.C. App. 433, 439, 183 S.E.2d 813, 817 (1971), aff'd , 281 N.C. 697, 190 S.E.2d 189 (1972) ). "A contractor meeting the requirements of an independent contractor is, subject to exceptions discussed below, solely responsible for his own wrongful acts."

Horne v. City of Charlotte , 41 N.C. App. 491, 493, 255 S.E.2d 290, 292 (1979) (citations omitted). In determining whether a person is an independent contractor or an employee, the following factors are examined:

whether the person (1) is engaged in an independent business, calling, or occupation; (2) is to have the independent use of his special skill, knowledge, or training in the execution of the work; (3) is doing a specified piece of work at a fixed price or for a lump sum or upon a quantitative basis; (4) is not subject to discharge because he adopts one method of doing the work rather than another; (5) is not in the regular employ of the other contracting party; (6) is free to use such assistants as he may think proper; (7) has full control over such assistants; and (8) selects his own time.

Coastal Plains , 166 N.C. App. at 346, 601 S.E.2d at 924 (citing McCown v. Hines , 353 N.C. 683, 687, 549 S.E.2d 175, 177-78 (2001) ). " ‘No particular one of these factors is controlling in itself, and all the factors are not required. Rather, each factor must be considered along with all other circumstances to determine whether the [person] possessed the degree of independence necessary for classification as an independent contractor.’ " Id . (quoting McCown , 353 N.C. at 687, 549 S.E.2d at 178 ).

In the present case, plaintiff presented no evidence to the trial court that an agency relationship existed between defendants and Otis Hill Logging. As a result, the only evidence before the trial court was that of defendants, supporting their contention that Otis Hill Logging was an independent contractor and not an agent of defendants.

Plaintiff further argues that, even if Otis Hill Logging was an independent contractor, "[d]efendants are still liable in that they employed Otis Hill Logging to do an act allegedly unlawful in itself, committing a trespass on [plaintiff's] property." This argument is without merit.

It is well established that "when a contractor, whether as an independent contractor or employee, is employed to do an act allegedly unlawful in itself, such as committing a trespass, the municipality is solely liable for the resulting damages." Horne , 41 N.C. App. at 493-94, 255 S.E.2d at 292 (citations omitted).

Here, plaintiff bases his argument on the contention that:

[b]y all accounts, Mr. Cline, Mr. Thurman and an employee from Otis Hill Logging met prior to any timbering ... to observe the property boundaries, [and] a dispute about which boundaries [were] shown exists. Despite this meeting and the inclusion of the legal description of the land to be cut in the timber assignment, an overcut occurred.

However, this evidence does not support the allegation that defendants contracted with Otis Hill Logging to trespass on plaintiff's property.

Accordingly, there existed no genuine issue of material fact and defendants were entitled to summary judgment on plaintiff's claim for trespass to land.

II. Conversion Claim

Next, plaintiff argues that the trial court erred in granting defendants' motion for summary judgment on plaintiff's claim for conversion. We disagree.

Under North Carolina law, "the tort of conversion is well defined as ‘an unauthorized assumption and exercise of the right of ownership over goods or personal chattels belonging to another, to the alteration of their condition or the exclusion of an owner's rights.’ " Variety Wholesalers, Inc. v. Salem Logistics Traffic Servs., LLC , 365 N.C. 520, 523, 723 S.E.2d 744, 747 (2012) (quoting Peed v. Burleson's, Inc. , 244 N.C. 437, 439, 94 S.E.2d 351, 353 (1956) (alterations omitted) ). "Two essential elements are necessary in a claim for conversion: (1) ownership in the plaintiff, and (2) a wrongful conversion by the defendant." Bartlett Milling Co. v. Walnut Grove Auction & Realty Co. , 192 N.C. App. 74, 86, 665 S.E.2d 478, 489 (2008) (citing Lake Mary Ltd. P’ship. v. Johnston, 145 N.C. App. 525, 532, 551 S.E.2d 546, 552, disc. rev. denied, 354 N.C. 363, 557...