1. Appeal and Error--briefs--type size--double costs
Double costs were assessed for violation of N.C.R. App. P.
26(f) where both briefs violated type size restrictions.
2. Trespass--wrongful cutting of timber--sufficiency of
evidence
The trial court did not err in a trespass action arising
from the cutting of timber by submitting to the jury plaintiff-
Barnards' trespass claim or by denying defendant Roland's JNOV
motion where the parties stipulated that the Barnards owned the
property subject to the alleged trespass, and, viewed in the
light most favorable to plaintiffs, the testimony at trial
indicated that defendant Roland entered upon the Barnards' land
without authorization, proceeded to cut timber, and that the
Barnards were damaged thereby.
3. Damages and Remedies--punitive damages--trespass and
wrongful cutting of timber--double recovery
The trial court erred in a trespass action arising from the
cutting of timber by submitting the issue of punitive damages to
the jury where plaintiffs sought damages for the value of the
timber cut and the diminution in value of their land but elected
to seek recovery under N.C.G.S. § 1-539.1 and relinquished any
claim for punitive damages attendant to the common law claim. A
plaintiff suing for unlawful cutting or removal of timber may
recover either the difference in value of the property
immediately before and after the cutting, in addition to punitive
damages if appropriate under the facts, or the value of the
timber itself doubled by operation of N.C.G.S. § 1-539.1(a), but
not both. Collecting punitive damages under common law and
statutory double damages would amount to double recovery.
4. Contracts--wrongful interference--directed verdict
The trial court did not err by granting plaintiffs' motion
for a directed verdict on a counterclaim for wrongful
interference with contract arising from a claim for wrongful
cutting of timber. The record fails to reveal the requisite
scintilla of evidence that plaintiffs acted without justification
in opposing the logging operations; rather, as owner of adjoining
real estate, plaintiffs' interest in protecting their property
from unauthorized logging activities was without doubt reasonable
and bona fide.
5. Contracts--impossibility of performance and prevention--no
instruction--no prejudice
The trial court did not err in an action arising from the
cutting of timber by not instructing the jury on the doctrine of
impossibility of performance. In assessing and denying the
third-party plaintiff's claim that the third-party defendants
breached the timber contract, the jury necessarily considered
whether it was impossible for the defendant and third-party
plaintiff to have performed the contract or whether the third-
party defendants prevented him from doing so.
6. Contribution--instruction not given--no prejudice
There was no prejudice in an action arising from the cutting
of timber where the court failed to charge the jury on
contribution because the jury determined that defendant
trespassed “purposefully” and the trespass was thus not a result
of a misrepresentation of property lines by the party letting the
contract, so that defendant had no claim for contribution. Appeal by defendant and third-party plaintiff from judgment
entered 17 February 1997 by Judge Ted Blanton in Rowan County
District Court. Heard in the Court of Appeals 4 June 1998.
J. Stephen Gray for defendant and third-party plaintiff.
B.S. Brown, Jr., for plaintiffs.
Inge and Doran, by Michael Doran, 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 wereinjuring 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 the 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 ofcontract 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.
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.
Q: And this damage is on your side of the
fence?
A: Yes, sir.
Q: How did he get to this area?
A: He came through my gate.
. . . .
Q: Came on your property?
A: Yes.
The foregoing was corroborated by Richard Brandon, a
registered surveyor, who testified in relevant part:
Q: Okay. And all the trees that are shown
on this plat, other than the one that does
not have a number, are either on the line or
on Mr. Barnard's property?
A. Correct.
Q: Did Mr.---? In looking at these trees
and all, did Mr. Barnard identify them to you
as trees that had been cut by Mr. Rowland?
A: Yes, sir.
Taking all inferences in favor of the Barnards, more than a
scintilla of evidence supported each element of plaintiff's
trespass claim, see Snead, 101 N.C. App. at 464, 400 S.E.2d at
92, and the trial court did not err in submitting this issue to
the jury or by denying defendant Rowland's JNOV motion.
the circumstances surrounding the
interference, the actor's motive or conduct,
the interests sought to be advanced, the
social interest in protecting the freedom of
action of the actor and the contractual
interests of the other party.
Peoples Security Life Ins. Co. v. Hooks, 322 N.C. 216, 221, 367
S.E.2d 647, 650 (1988). Further, justification is lacking if
“'the act is done other than as a reasonable and bona fide
attempt to protect the interest of the [accused] which is
involved.'” Id. at 220, 367 S.E.2d at 650 (quoting Smith v. Ford
Motor Co., 289 N.C. 71, 91, 221 S.E.2d 282, 294 (1976)).
However, if a particular act is done for a “legitimate . . . purpose, [the act] is privileged.” Id. at 221, 221 S.E.2d at
650.
Suffice it to state that careful review of the record fails
to reveal the requisite scintilla of evidence that Mr. Barnard
acted without justification in opposing the logging operations of
Rowland. See Snead, 101 N.C. App. at 110, 400 S.E.2d at 92.
Rather, as owner of adjoining real estate, Mr. Barnard's interest
in protecting his property from unauthorized logging activities
without doubt was “reasonable and bona fide.” See Smith, 289
N.C. at 91, 221 S.E.2d at 294. As the evidence failed regarding
a “constituent element[]” of Rowland's counterclaim, see Douglas,
95 N.C. App. at 511, 383 S.E.2d at 426, the trial court did not
err in granting the Barnards' motion for directed verdict
thereon.
Issue Four
(a) Was the defendant, Bobby Rowland, the
agent of the third-party defendant, James
Fife, at the time of the trespass by Rowland
on the property owned by Barnard?
Answer: No
. . . .
Issue Five
(a) Did the defendant, Bobby Rowland, breach
his contract with the third-party defendants,
James and Michelle Fife?
Answer: Yes
. . . .
Issue Six
(a) Did the third-party defendants, James
and Michelle Fife, breach their contract with
the defendant, Bobby Rowland?
Answer: No
Assuming arguendo the court erred by not instructing the
jury upon impossibility of performance and prevention, and
contribution, we nonetheless hold Rowland has not demonstrated he
has been prejudiced thereby.
For instance, in asserting that the Fifes breached the
timber contract, Rowland alleged in his third-party claim:
[t]he third-party defendants, without
justification or excuse, wrongfully and
materially breached the contract with the
third-party plaintiffs by making impossible
for the third-party plaintiff to finish the
contract, by, but not limited to the
following:
. . . .
C. The third-party defendant
James M. Fife demanded that the
third-party plaintiff, the
defendant herein, leave the
premises prior to the third-party
plaintiff removing all of the
timber that had been bargained for
pursuant to a threat of violence
against the third-party plaintiff.
D. The third-party defendant,
James M. Fife prevented the
defendant from sowing grass on both
sides of the creek.
(Emphasis added).
In assessing and denying Rowland's claim that the Fifes
breached the timber contract, the jury necessarily considered
whether it was impossible for defendant to have performed the
contract or whether the Fifes prevented him from doing so.
Defendant has not shown that “a different result would likely
have ensued had the [alleged] error not occurred,” Warren v. City
of Asheville, 74 N.C. App. 402, 409, 328 S.E.2d 859, 864, disc.
review denied, 314 N.C. 336, 333 S.E.2d 496 (1985), i.e., had the
jury been separately instructed on the doctrine of impossibility
of performance and prevention. We therefore hold that any such
error was harmless. See Rule 61.
[6]Similarly, the jury's findings “establish[ed] the rights
of the parties irrespective of the answer to the question[]” of
contribution, Mode, 8 N.C. App. at 213, 174 S.E.2d at 33, and any
error by the trial court in failing to charge the jury on this
issue was also harmless. See id. Notably, the jury determined
Rowland trespassed upon the Barnards' property “purposefully” and
that he was not acting on behalf of or as “the agent of the
third-party defendant [Fifes].” Rowland's trespass was thus not
“a result of a misrepresentation of property lines by the party
letting the contract,” see G.S. § 1-539.1(c), and Rowland
therefore had no claim to contribution. See id.; cf. N.C.G.S. §
1B-1(a) (1983) (contribution not proper “in favor of any
tortfeasor who has intentionally caused or contributed to the
injury”). Accordingly, Rowland has failed to show he was
“prejudiced as a result” of the lack of a specific jury instruction on contribution, Lawing, 81 N.C. App. at 162, 344
S.E.2d at 104, and any error by the trial court in that regard
was harmless. See Rule 61.
In sum, we hold the trial court did not err in denying
Rowland's motions for directed verdict and JNOV, or by granting
the Barnards' motion for directed verdict on defendant's tortious
interference of contract counterclaim. Further, Rowland was not
prejudiced as a result of the court's failure to instruct the
jury with respect to the doctrines of impossibility of
performance and prevention, or contribution. However, we reverse
the trial court's submission of the issue of punitive damages to
the jury and its subsequent judgment including an award of such
damages. This cause is therefore remanded to the District Court
of Rowan County for entry of a new judgment in favor of
plaintiff not inconsistent with the opinion herein. Double costs
are assessed, the first set payable in equal shares by the
parties, the second set to be paid in equal shares by counsel for
the parties.
Affirmed in part; reversed in part and remanded with
instructions. Double costs.
Judges McGEE and SMITH concur.
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