An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Proced ure.

NO. COA03-710


Filed: 6 April 2004


v .                             Macon County
                                No. 01 CVS 576

    Appeal by plaintiffs from order entered 17 February 2003 and appeal by defendants from order entered 20 February 2003 by Judge Ronald K. Payne, Superior Court, Macon County. Heard in the Court of Appeals 2 March 2004.

    Cogburn, Goosman, Brazil & Rose, P.A. by Steven D. Cogburn and Frank J. Contrivo, Jr., for plaintiffs.

    Jones, Key, Melvin & Patton, P.A., by Fred H. Jones, for defendants.

    WYNN, Judge.

    By this appeal, Defendants, Charles F. Impink and Gladys E. Impink, contend partial summary judgment was erroneously granted in favor of Plaintiffs because genuine issues of material fact exist as to whether Defendants acted negligently in the setting and controlling of a fire. Plaintiffs, owner of property adjacent to Defendants' property, contend summary judgment was erroneously granted in favor of Defendants on Plaintiffs' claims for damage to lands to which they received legal title subsequent to the fire. We reverse the orders below and remand for further proceedings.
    Defendants, Charles F. Impink and his wife, Gladys E. Impink, were in the process of clearing land for the construction of a new home. They hired Gale Jenkins Construction to clear the property and excavate a foundation area. On the day of the fire, 27 April 2001, the construction company lit a debris pile of unusable brush. Mr. Impink had obtained a burn permit from the Forestry Service.
    Defendants assert the fire was lit during calm wind conditions in the early afternoon. Approximately one hour after the fire started a wind gust picked up some of the burning material and blew it two hundred feet onto the property of the U.S. Forestry Service. Although Mr. Impink and the construction workers tried to extinguish the fire, the fire spread to Plaintiffs' property. As a result of the fire, approximately 2.2 acres of Plaintiffs' property and 14.73 acres of U.S. Forestry Service land was damaged.
    At the time of the fire, Plaintiffs and the U.S. Forestry Service were in the process of culminating a land exchange deal, pursuant to which Plaintiffs would receive 123 acres of U.S. Forestry land. This acreage included the 14.73 acres damaged by the fire. A month prior to the fire, on 15 March 2001, all of the exchange conditions had been completed by Plaintiff and the United States Government; moreover, the U.S. Government, acting through the U.S. Forestry Service, had executed the deed for the land to be received by Plaintiffs. Within a week after the fire, the U.S. Government and Plaintiffs met to close the exchange deal and theexchange deeds were recorded on 3 May 2001.
    On 21 November 2001, Plaintiffs filed a cause of action against Defendants seeking compensation for the damages caused to the 2.2 acres they owned prior to the fire and the 14.73 acres for which they obtained legal title shortly after the fire. After considering cross-motions for summary judgment, the trial court granted partial summary judgment in favor of Plaintiffs on the issue of Defendants' negligence. The trial court also granted partial summary judgment in favor of Defendants which dismissed Plaintiffs' claims for damages to the 14.73 acres of land. After trial, the jury awarded Plaintiffs $38,500.00 for damages to the 2.2 acres of land. Plaintiffs and Defendants appeal.

A. Defendants' Appeal
    Defendants argue summary judgment was improvidently granted as a genuine issue of material fact exists as to whether they negligently set and controlled the burning of the debris pile. Summary judgment is appropriate “if 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). The party moving for summary judgment has the burden of establishing the absence of triable issues of fact. Roumillat v. Simplistic Enterprises, Inc., 331 N.C. 57, 62-63, 414 S.E.2d 339, 342-43 (1992). A defendant may meet this burden by proving “either the non-existence of an essential element of the plaintiff's claim orthat the plaintiff has no evidence of an essential element of her claim.” Nourse v. Food Lion, Inc., 127 N.C. App. 235, 239, 488 S.E.2d 608, 611 (1997). Once a defendant moving for summary judgment meets this burden, plaintiff must “produce a forecast of evidence demonstrating that the plaintiff will be able to make out at least a prima facie case at trial.” Collingwood v. G.E. Real Estate Equities, 324 N.C. 63, 66, 376 S.E.2d 425, 427 (1989). Plaintiff, however, “may not rest upon the mere allegations or denials of his pleading, but his response, by affidavits or . . . otherwise . . . must set forth specific facts showing that there is a genuine issue for trial.” § 1A-1, Rule 56(e). “In determining whether summary judgment is appropriate, 'all inferences of fact must be drawn against the movant and in favor of the nonmovant.'” Byrd v. Adams, 152 N.C. App. 460, 463, 568 S.E.2d 640, 642-43 (2002). Morevoer, “it is only in exceptional negligence cases that summary judgment is appropriate, since the standard of reasonable care should ordinarily be applied by the jury under appropriate instructions from the court.” Ragland v. Moore, 299 N.C. 360, 363, 261 S.E.2d 666, 668 (1980).
    In this case, we hold that the record shows a genuine issue of material fact exists as to Defendants' negligence. Viewing the evidence in the light most favorable to Defendants, the record shows Mr. Impink took precautions to prevent the spread of the fire, including: building the debris pile in the middle of his property in an area that had been cleared of vegetation; hiring Mr. Gale Jenkins for his expertise in clearing and excavating land;backburning all of the fuel around the debris pile in a two hundred foot radius; watching the fire in order to take immediate action to prevent its spread if necessary; and starting the fire on a calm day. Moreover, the facts indicate the fire spread as the result of an unforeseen gust of wind which carried sparks from the burning pile onto adjacent property.
    Plaintiffs argue, however, that summary judgment was proper because Defendants' actions constituted negligence per se in that Defendants violated N.C. Gen. Stat. § 14-136. Therefore, Plaintiffs argue whether Defendants exercised due care is irrelevant. We disagree.
    N.C. Gen. Stat. § 14-136 (2001), encaptioned “Setting fire to grass and brushlands and woodlands,” provides:
        If any person shall intentionally set fire to any grassland, brushland, or woodland, except it be his own property, or in that case without first giving notice to all persons owning or in charge of lands adjoining the land intended to be fired, and without also taking care to watch such fire while burning and to extinguish it before it shall reach any lands near to or adjoining the lands so fired, he shall for every such offense be guilty of a Class 2 misdemeanor for the first offense, and for a second or any subsequent similar offense shall be guilty of a Class 1 misdemeanor. If intent to damage the property of another shall be shown, said person shall be punished as a Class I felon. This section shall not prevent an action for the damages sustained by the owner of any property from such fires. For the purposes of this section, the term “woodland” is to be taken to include all forest areas, both timber and cutover land, and all second-growth stands on areas that have at one time been cultivated. ...

(emphasis supplied). Cutover land is not defined by our statutes. However, according to Black's Law Dictionary, “cutover land is land which has been logged; from which desired timber has been removed.”
    In this case, Defendants had removed the trees and brush from the ground and had sent the trees to a saw mill. On the day of the fire, Defendants were burning a debris pile consisting of the unusable brush. Pursuant to N.C. Gen. Stat. § 14-136, the burning of a pile of unusuable brush is not the equivalent of burning of timber and cutover land.
    Citing Hall v. Cranford, 50 N.C. 3 (1857), Plaintiffs argue our Supreme Court has given an expansive interpretation to the meaning of woodland. In Hall, the Court held “an old field grown up in broom-sedge and pine-bushes” was within the meaning of an earlier version of N.C. Gen. Stat. § 14-136. However, in Achenbach v. Johnston, 84 N.C. 264 (1881), in discussing whether “a field grown up in broom-sedge and wire grass, surrounded by an old fence and used as a pasture” could be construed as woods, our Supreme Court stated that “the case of Hall v. Cranford,. . . , in which it was held that 'an old field which had been turned out without any fence around it, and which had grown up in broom-sedge and pine-bushes, some of which were waist high and others head high,' did come within its meaning, stretched the doctrine of being liberal in construing statutes in order to reach the mischief intended to be remedied, as far as it is safe to follow.” Accordingly, our Supreme Court's opinion in Hall v. Cranford is limited to the specific facts of that case and does not constitute persuasive authority for an expansive definition of 'woods' or'woodlands,' as that term is used in N.C. Gen. Stat. § 14-136. Thus, as it appears in the plain language of N.C. Gen. Stat. § 14- 136 and in accordance with the longstanding interpretation given to the statute by our Supreme Court, 'woods' or 'woodland' as used in N.C. Gen. Stat. § 14-136 does not include a pile of cut and unusuable brush.
    Accordingly, the trial court erroneously granted summary judgment in favor of Plaintiffs on the issue of negligence. As a genuine issue of material fact exists as to Defendants' negligence, the trial court's summary judgment order is reversed and this case is remanded for trial.
    B. Plaintiffs' Appeal
    Plaintiffs contend the trial court erroneously dismissed their claims for damages to the 14.73 acres of land obtained from the U.S. Government in the land exchange deal. We agree.
    The record indicates that on 8 November 2001, the United States irrevocably assigned and transferred to Plaintiff “the right to seek redress against the party or parties liable for the damages caused to the exchanged lands by the fire of April 27, 2001.” Accordingly, Plaintiff has the right to seek redress from Defendants for damages to the 14.73 acres resulting from the fire. Indeed, the record shows Plaintiffs have spent several thousands of dollars restoring the land and a genuine issue of material fact exists as to whether the fire caused damage that diminished the value of the land. See Lee v. Bir, 116 N.C. App. 584, 590, 449 S.E.2d 34, 38 (1994).    In sum, we reverse the trial court's grant of partial summary judgment in favor of Plaintiffs and Defendants and remand for trial on the issue of Defendants' negligence and the amount of damages owed to Plaintiffs, if any, for damage to the 2.2 and 14.73 acres of land.
    Reversed and remanded.
    Judges HUNTER and TYSON concur.
    Report per Rule 30(e).

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