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 entered 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 fee
simple remainder interest was held by those grandchildren of
Mr. Burden who were alive at the death of the last of Mr.
Burden's five children. That is, the Property would not
pass in fee simple absolute to Mr. Burden's grandchildren
until all of his children had died, and would only
pass to those grandchildren who survived all of Mr.
Burden's five children.
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-1980's. 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 the Bazemores, 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 then-living grandchildren per stirpes
in fee simple absolute.
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's estates 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 double 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, as detailed in
Section III (Conclusion) below.
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 include the
right to timber the property.
Burden, as the fee simple absolute titleholder, owned
substantially all of the "sticks" or
"rights" in the Property. When Mr. Burden died, he
left some of the "sticks" to Mrs. Bazemore, as a
life tenant, and other "sticks" to the
Grandchildren, as remaindermen. Important to the present case
are the sticks owned by Mrs. Bazemore and by the
Grandchildren relating to the timber on the Property.
Burden bequeathed to Mrs. Bazemore a life estate, which
carries with it some rights in the trees. Specifically, our
Supreme Court has held that, absent some other express grant,
a life tenant's right to cut timber from her land is
limited. That is, a life tenant is allowed to "clear
tillable land to be cultivated for the necessary support of
[her] family," and she may "also cut and use timber
appropriate for necessary fuel" or to build structures
on the property. Dorsey v. Moore, 100 N.C. 41, 44, 6
S.E. 270, 271 (1888). Further, a life tenant is permitted to
harvest and sell sufficient timber needed to maintain the
property. Fleming v. Sexton, 172 N.C. 250, 257, 90
S.E. 247, 250 (1916). However, a life tenant commits waste if
she cuts timber "merely for sale, --to sell the timber
trees, and allow them to be cut down and manufactured into
lumber for market[:]"
It would take from the land that which is not incident to the
life-estate, and the just enjoyment of it, consistently with
the estate and rights of the remainder-man or reversioner.
The law intends that the life-tenant shall enjoy his estate
in such reasonable way as that the land shall pass to the
reversioner, as nearly as ...