Jackson v. Don Johnson Forestry, Inc.

• Court: North Carolina Court of Appeals
• Writing for the Court: DILLON, Judge.
• Citation: Jackson v. Don Johnson Forestry, Inc., 830 S.E.2d 659, 265 N.C.App. 20 (N.C. App. 2019)
• Decision Date: 16 April 2019
• Docket Number: No. COA18-354-2,COA18-354-2
• Parties: Betty Burden JACKSON, Nancy Burden Elliott; James Burden, Rebecca Burton Bell, Darren Burton, Clarence Burton, Jr. and John Burden, Plaintiffs, v. DON JOHNSON FORESTRY, INC. and East Carolina Timber, LLC, and Nellie Burden Ward, Albert R. Burden, Levy Burden, Clarence L. Burden and Brenda B. Miller, Other Grandchildren Defendants, East Carolina Timber, LLC, Third-Party/Counterclaim Plaintiff, v. Estate of William F. Bazemore by and Through Its Executors, Nellie Ward and Tarsha Dudley, and Estate of Florida Bazemore by and Through Its Administrator, Maria Jones, Third-Party/Counterclaim Defendants.

265 N.C.App. 20

830 S.E.2d 659

Betty Burden JACKSON, Nancy Burden Elliott; James Burden, Rebecca Burton Bell, Darren Burton, Clarence Burton, Jr. and John Burden, Plaintiffs,

v.DON JOHNSON FORESTRY, INC. and East Carolina Timber, LLC,andNellie Burden Ward, Albert R. Burden, Levy Burden, Clarence L. Burden and Brenda B. Miller, Other Grandchildren Defendants,East Carolina Timber, LLC, Third-Party/Counterclaim Plaintiff,

v.Estate of William F. Bazemore by and Through Its Executors, Nellie Ward and Tarsha Dudley, and Estate of Florida Bazemore by and Through Its Administrator, Maria Jones, Third-Party/Counterclaim Defendants.

No. COA18-354-2

Court of Appeals of North Carolina.

Filed: April 16, 2019

Hornthal, Riley, Ellis & Maland, LLP, Elizabeth City, by M. H. Hood Ellis and Casey L. Peaden, for the Plaintiff.

Yates, McLamb & Weyher, L.L.P., by Christopher J. Skinner and Denaa J. Griffin, Raleigh, for Defendant Don Johnson Forestry, Inc.

McAngus Goudelock & Courie, PLLC, Raleigh, by Elizabeth H. Overmann, and Ward and Smith, P.A., Winterville, by E. Bradley Evans, for Defendant and Third-Party/Counterclaim Plaintiff East Carolina Timber, LLC.

Dixon & Thompson Law PLLC, Edenton, by Paul Faison S. Winborne, for the Third-Party/Counterclaim Defendant Estate of Florida Bazemore.

DILLON, Judge.

This is an appeal and cross-appeal by a number of parties from a summary judgment order entered in this case involving alleged damages caused by the unauthorized cutting of timber from a certain tract of land.

I. Background

In 1982, Z. J. Burden died, bequeathing a large tract of land (the "Property") to his lineal descendants. Specifically, pursuant to Mr. Burden's will, Mr. Burden's five children, or the survivor(s) of them, received a life estate in the Property¹ ; and the fee simple remainder interest was held by those grandchildren of Mr. Burden who were alive at the death of the last of Mr. Burden's five children. That is, the Property would not pass in fee simple absolute to Mr. Burden's grandchildren until all of his children had died, and would only pass to those grandchildren who survived all of Mr. Burden's five children.

Mr. Burden's will also granted to his children, or the survivor(s) of them, during the life tenancy, the right to sell any timber growing on the Property that was at least twelve (12) inches in diameter for any reason they saw fit, without having to share the proceeds from the sale with the remaindermen-grandchildren.

In early 2014, Florida Bazemore was the sole surviving child of Mr. Burden and, therefore, was the sole owner of the life estate in the Property. After entering a nursing home, Mrs. Bazemore signed a General Power of Attorney, naming her husband, William Bazemore, and two others as her attorneys-in-fact.

Shortly thereafter, Mr. Bazemore entered into a broker's agreement with Defendant Don Johnson Forestry, Inc. (the "Broker"), to procure a buyer for the timber growing on the Property. The Property had not been timbered since the mid-1980's. The Broker procured an offer from Defendant East Carolina Timber, LLC, (the "Timber Buyer") to purchase the timber growing on the Property.

In March 2014, Mr. Bazemore signed an agreement to sell the timber growing on the Property to the Timber Buyer.

During the summer of 2014, the Timber Buyer cut a number of trees from the Property, paying $130,000; $122,000 of this money was paid to the Bazemores, and the remainder was paid to the Broker for its brokerage commission.

In May 2015, Mr. Bazemore died. Two months later, in July 2015, Mrs. Bazemore died. Upon her death, the Property passed to Mr. Burden's then-living grandchildren per stirpes in fee simple absolute.

In October 2015, several of Mr. Burden's grandchildren² (the "Grandchildren") commenced this action against the Broker and the Timber Buyer for cutting timber from the Property during Mrs. Bazemore's life tenancy. The Grandchildren sought double the value of the timber cut, pursuant to N.C. Gen. Stat. § 1-539.1.

The Broker and Timber Buyer each answered denying liability. And the Timber Buyer asserted a third-party complaint against the estates of Mr. and Mrs. Bazemore's estates for indemnity.

In November 2017, after a hearing on summary judgment motions, the trial court entered a summary judgment order, which did three things: (1) it granted the Broker's motion for summary judgment, thereby dismissing the Grandchildren's claims against it; (2) it granted the Grandchildren's motion for summary judgment on their claims against the Timber Buyer, awarding $259,596 in double damages; and (3) it granted the Timber Buyer's motion for summary judgment against Mr. and Mrs. Bazemore's estates for indemnity. Each part of the summary judgment order was timely appealed. For the reasons stated below, we affirm in part, reverse in part, and remand for further proceedings, as detailed in Section III (Conclusion) below.

II. Analysis

A. Mrs. Bazemore's Rights in the Trees During Her Life Tenancy

Rights in a particular piece of property have been described as a "bundle of sticks"³ or "bundle of rights,"⁴ where various people/entities could own different rights in that property. These rights include the right to timber the property.

Mr. Burden, as the fee simple absolute titleholder, owned substantially all of the "sticks" or "rights" in the Property. When Mr. Burden died, he left some of the "sticks" to Mrs. Bazemore, as a life tenant, and other "sticks" to the Grandchildren, as remaindermen. Important to the present case are the sticks owned by Mrs. Bazemore and by the Grandchildren relating to the timber on the Property.

Mr. Burden bequeathed to Mrs. Bazemore a life estate, which carries with it some rights in the trees. Specifically, our Supreme Court has held that, absent some other express grant, a life tenant's right to cut timber from her land is limited. That is, a life tenant is allowed to "clear tillable land to be cultivated for the necessary support of [her] family," and she may "also cut and use timber appropriate for necessary fuel" or to build structures on the property. Dorsey v. Moore , 100 N.C. 41, 44, 6 S.E. 270, 271 (1888). Further, a life tenant is permitted to harvest and sell sufficient timber needed to maintain the property. Fleming v. Sexton , 172 N.C. 250, 257, 90 S.E. 247, 250 (1916). However, a life tenant commits waste if she cuts timber "merely for sale,--to sell the timber trees, and allow them to be cut down and manufactured into lumber for market[:]"

It would take from the land that which is not incident to the life-estate, and the just enjoyment of it, consistently with the estate and rights of the remainder-man or reversioner. The law intends that the life-tenant shall enjoy his estate in such reasonable way as that the land shall pass to the reversioner, as nearly as practicable unimpaired as to its natural capacities, and the improvements upon it.

Moore , 100 N.C. at 44, 6 S.E. at 271 (citations omitted).⁵

Mr. Burden, however, bequeathed to Mrs. Bazemore more "sticks" in the timber than that normally held by a life tenant, as was his right as the fee simple owner. See Fletcher v. Bray , 201 N.C. 763, 767-68, 161 S.E. 383, 385-86 (1931). Specifically, in addition to bequeathing to Mrs. Bazemore the "sticks" in the timber normally reserved for a life tenant, Mr. Burden bequeathed to Mrs. Bazemore the unfettered right to cut and sell any tree with a diameter of twelve (12) inches or more (hereinafter the "Large Trees") during her life tenancy. This arrangement was similar to that in Fletcher v. Bray , where the fee simple owner bequeathed a life estate in certain property to his wife and the right to dispose of the trees thereon for any reason during her life tenancy, with the remainder to his nephews and nieces in fee simple. Id. Our Supreme Court held that this arrangement was lawful:

The court holds the opinion that the standing timber was severed by the testator from the fee and the absolute dominion thereof given the wife, and such severance was designed for her benefit rather than for the benefit of [the remaindermen]. Therefore, [wife], upon the sale of the timber, was entitled to hold the proceeds in her own right as her own property [and had the right to bequeath the proceeds as she saw fit].

Id. at 768, 161 S.E. at 386.

Therefore, Mrs. Bazemore had the unfettered right during her life tenancy to profit from any Large Tree, pursuant to Mr. Burden's will. However, her right to the smaller trees during her life tenancy was limited to that of a life tenant.

B. The Grandchildren's Right to Seek Relief as Remaindermen

Where there is an unauthorized cutting of trees during a life tenancy, the remaindermen may seek relief. But the type of relief that a remainderman can seek depends on whether his interest is vested or contingent.

Our Supreme Court has held that a vested remainderman or reversioner has many remedies. Specifically, he "has his election either to bring trover for the value of the tree after it is cut, or an action [for trespass] on the case in the nature of waste, in which, besides the value of the tree considered as timber, he may recover damages for any injury to the inheritance which is consequent upon the destruction of the tree." Burnett v. Thompson , 51 N.C. 210, 213 (1858). Indeed, the right to bring an action for waste has been codified in Chapter 1, Article 42 of our General Statutes. See N.C. Gen. Stat. § 1-42 (2017).

However, owners of a contingent future interest "cannot recover damages for waste already committed, [but] they are entitled to have their [contingent] interests protected from [future] threatened waste or destruction by injunctive relief." Gordon v. Lowther , 75 N.C. 193, 193 (1876) ; see also Peterson v. Ferrell , 127 N.C. 169, 170, 37 S.E. 189, 190 (1900) (holding that both vested and contingent remaindermen have the right to seek an injunction to protect against future waste); Edens v. Foulks , 2 N.C. App. 325, 331, 163 S.E.2d 51, 54 (1968) (s...