BETTY BURDEN JACKSON, NANCY BURDEN ELLIOTT; JAMES BURDEN, REBECCA BURTON BELL, DARREN BURTON, CLARENCE BURTON, JR. and JOHN BURDEN, Plaintiffs,
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, and EAST CAROLINA TIMBER, LLC, Third-Party/Counterclaim Plaintiff,
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.
in the Court of Appeals 3 October 2018.
by Plaintiffs, appeal by Defendant East Carolina Timber, LLC,
and appeal by Third-Party Defendant Estate of Florida
Bazemore, all from judgment entered 9 November 2017 by Judge
Wayland J. Sermons, Jr., in Bertie County No. 15-CVS-264
Hornthal, Riley, Ellis & Maland, LLP, by M. H. Hood Ellis
and Casey L. Peaden, for the Plaintiff.
McLamb & Weyher, L.L.P., by Christopher J. Skinner and
Denaa J. Griffin, for Defendant Don Johnson Forestry, Inc.
McAngus Goudelock & Courie, PLLC, by Elizabeth H.
Overmann, and Ward and Smith, P.A., by E. Bradley Evans, for
Defendant and Third-Party/Counterclaim Plaintiff East
Carolina Timber, LLC.
& Thompson Law PLLC, by Paul Faison S. Winborne, for the
Third-Party/Counterclaim Defendant Estate of Florida
an appeal and cross-appeal by a number of parties from a
summary judgment order in this case involving alleged damages
caused by the unauthorized cutting of timber from a certain
tract of land.
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 Property; and the remainder
interest was held by Mr. Burden's grandchildren per
stirpes in fee simple absolute. That is, the Property
would not pass in fee simple absolute to Mr. Burden's
grandchildren until all of his children had died.
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
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
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-1980s. The Broker procured an offer from
Defendant East Carolina Timber, LLC, (the "Timber
Buyer") to purchase the timber growing on the Property.
March 2014, Mr. Bazemore signed an agreement to sell the
timber growing on the Property to the Timber Buyer.
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 Mr. Bazemore, and the remainder was paid to the
Broker for its brokerage commission.
2015, Mr. Bazemore died. Two months later, in July 2015, Mrs.
Bazemore died. Upon her death, the Property passed to Mr.
Burden's grandchildren per stirpes in fee simple
October 2015, several of Mr. Burden's
grandchildren (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.
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 for indemnity.
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 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.
Bazemore's Rights in the Trees During Her Life Tenancy
in a particular piece of property have been described as a
"bundle of sticks" or "bundle of rights,
" where various people/entities could own
different rights in that property. These rights ...