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Hamby v. Thurman Timber Co., LLC

Court of Appeals of North Carolina

July 17, 2018

DERRICK HAMBY, Plaintiff,
v.
THURMAN TIMBER COMPANY, LLC, and TIMOTHY W. THURMAN, Defendants-Appellees,
v.
LLOYD ALVIS CLINE, Third Party Defendant-Appellee.

          Heard in the Court of Appeals 16 May 2018.

          Appeal by plaintiff from order granting summary judgment entered 22 May 2017 by Judge Richard S. Gottlieb in Stokes County No. 15 CVS 843 Superior Court.

          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.

          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 ...


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