Hamby v. Thurman Timber Co.

IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA17-1371
Filed: 17 July 2018
Stokes County, No. 15 CVS 843
DERRICK HAMBY, Plaintiff,
v.
THURMAN TIMBER COMPANY, LLC, and TIMOTHY W. THURMAN, Defendants-
Appellees,
v.
LLOYD ALVIS CLINE, Third Party Defendant-Appellee.
Appeal by plaintiff from order granting summary judgment entered 22 May
2017 by Judge Richard S. Gottlieb in Stokes County Superior Court. Heard in the
Court of Appeals 16 May 2018.
Smith Law Group, PLLC, by Matthew L. Spencer and Steven D. Smith, for
plaintiff-appellant.
Dean & Gibson, PLLC, by Michael G. Gibson and Michael R. Haigler, for
defendants-appellees.
Henson & Talley, LLP, 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.
HAMBY V. THURMAN TIMBER COMPANY, LLC
Opinion of the Court
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
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Opinion of the Court
[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
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Opinion of the Court
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.
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HAMBY V. THURMAN TIMBER COMPANY, LLC
Opinion of the Court
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. 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;
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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).
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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.
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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 S.E.2d 539 (2001)).
Plaintiff asserts that the trial court erred in granting summary judgment on
his claim for conversion because “[d]efendants exercised the right of ownership over
timber belonging to [p]laintiff,” and because “[p]laintiff is the true owner of the timber
that was cut and harvested and which [d]efendant paid a total of $21,112.60 to Otis
Hill for the timber Otis Hill allegedly removed from [p]laintiff’s property.” Defendants
maintain that plaintiff’s assertion regarding the payment is incorrect; this payment
was for Cline’s timber, not Hamby’s. Defendants further assert that “[p]laintiff has
failed to put forward any evidence in the record that either Timothy Thurman or
Thurman Timber Company, LLC entered the [p]laintiff’s property or cut down any
trees.” We agree with defendants.
Defendants presented evidence that they hired Otis Hill as an independent
contractor to cut the timber from Cline’s property. Plaintiff presented no evidence
that defendants personally converted any of his property, or that defendants
purchased the timber cut from plaintiff’s property. As a result, plaintiff failed, as a
matter of law, to establish a claim for conversion. Defendants were entitled to
summary judgment on plaintiff’s claim for conversion.
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III. Negligence Claim
Plaintiff argues that “genuine issues of material fact exist as to [who] entered
onto [p]laintiff’s land, if Otis Hill Logging is an independent contractor or employee
and whether [d]efendant[s] exercised the same degree of care which a reasonable and
prudent person would in similar conditions.” Plaintiff further argues that, “to the
extent Otis Hill Logging is an independent contractor, the work which they were
contracted to perform was unlawful in itself, therefore their negligence can be
imputed on [d]efendant.” We disagree.
“Summary judgment is seldom appropriate in a negligence action. A trial court
should only grant such a motion where the plaintiff’s forecast of evidence fails to
support an essential element of the claim.” Wallen v. Riverside Sports Ctr., 173 N.C.
App. 408, 411, 618 S.E.2d 858, 861 (2005) (citing Bostic Packaging, Inc. v. City of
Monroe, 149 N.C. App. 825, 830, 562 S.E.2d 75, 79 (2002)). Nonetheless,“[a]
‘[p]laintiff is required to offer legal evidence tending to establish beyond mere
speculation or conjecture every essential element of negligence, and upon failure to
do so, [summary judgment] is proper.’ ” Frankenmuth Ins. v. City of Hickory, 235
N.C. App. 31, 34, 760 S.E.2d 98, 101 (2014) (quoting Young v. Fun Services-Carolina,
Inc., 122 N.C. App. 157, 162, 468 S.E.2d 260, 263 (1996)).
Actionable negligence has been defined as the “failure to exercise that degree
of care which a reasonable and prudent person would exercise under similar
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conditions. A defendant is liable for his negligence if the negligence is the proximate
cause of injury to a person to whom the defendant is under a duty to use reasonable
care.” Hart v. Ivey, 332 N.C. 299, 305, 420 S.E.2d 174, 177-78 (1992) (citations
omitted). In order to establish a prima facie case of negligence against the defendant,
the plaintiff must demonstrate that: “(1) the defendant owed the plaintiff a duty of
care; (2) the defendant’s conduct breached that duty; (3) the breach was the actual
and proximate cause of the plaintiff’s injury; and (4) plaintiff suffered damages as a
result of the injury.” Wallen, 173 N.C. App. at 411, 618 S.E.2d at 861 (quoting Vares
v. Vares, 154 N.C. App. 83, 87, 571 S.E.2d 612, 615 (2002), disc. review denied, 357
N.C. 67, 579 S.E.2d 576-77 (2003)).
As discussed above, plaintiff presented no evidence that defendants personally
removed the timber from plaintiff’s property, much less removed it in a negligent
manner. Moreover, plaintiff presented no evidence that Otis Hill Logging was an
employee of defendants, and made no assertion that defendants were negligent in
hiring Otis Hill Logging to remove the timber from Cline’s property. Accordingly, the
trial court properly granted summary judgment in favor of defendants with regard to
plaintiff’s negligence claim.
IV. Damage to Real Property Claim
In plaintiff’s complaint, he alleged a separate cause of action for damage to real
property. The claim of damage to real property was dismissed with prejudice by the
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trial court in its order granting summary judgment, from which plaintiff appeals.
However, in his brief, plaintiff fails to support this issue with either cogent argument
or citation to relevant legal authority. Accordingly, this argument has been
abandoned. See Wilson v. Pershing, LLC, __ N.C. App. __, __, 801 S.E.2d 150, 156
(2017) (quoting N.C.R. App. P. 28(b)(6)) (“Issues not presented in a party’s brief, or in
support of which no reason or argument is stated, will be taken as abandoned.”).
V. Piercing the Corporate Veil
Finally, plaintiff asks that this Court permit him to resume litigation of his
“claim for piercing the corporate veil,” so that the usual limited liability of corporate
officers and directors may be disregarded. Piercing the corporate veil is a mechanism
that “allows injured parties to bring claims against individuals who otherwise would
have been shielded by the corporate form.” Green v. Freeman, 367 N.C. 136, 145, 749
S.E.2d 262, 270 (2013). As our Supreme Court has recognized, “[t]he doctrine of
piercing the corporate veil is not a theory of liability. Rather, it provides an avenue
to pursue legal claims against corporate officers or directors who would otherwise be
shielded by the corporate form.” Id. at 146, 749 S.E.2d at 271.
In the present case, summary judgment was granted on plaintiff’s claims
against defendants. Accordingly, it is unnecessary for this Court to address plaintiff’s
additional arguments with regard to piercing the corporate veil.
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Conclusion
For the reasons set forth above, the trial court’s order granting summary
judgment is
AFFIRMED.
Judges ELMORE and HUNTER, JR. concur.
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