             IN THE COURT OF APPEALS OF NORTH CAROLINA

                                 No. COA17-1371

                                Filed: 17 July 2018

Stokes County, No. 15 CVS 843

DERRICK HAMBY, Plaintiff,

            v.

THURMAN TIMBER COMPANY, LLC, and TIMOTHY W. THURMAN, Defendants-
Appellees,


            v.


LLOYD ALVIS CLINE, Third Party Defendant-Appellee.


      Appeal by plaintiff from order granting summary judgment entered 22 May

2017 by Judge Richard S. Gottlieb in Stokes County Superior Court. Heard in the

Court of Appeals 16 May 2018.

      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.
                     HAMBY V. THURMAN TIMBER COMPANY, LLC

                                  Opinion of the Court



                                       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



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[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 party is entitled to a

judgment as a matter of law.” N.C. Gen. Stat. § 1A-1, Rule 56(c) (2017).

       Initially, “ ‘the burden of establishing the lack of any triable issue of fact’ ” rests

on the moving party. Draughon v. Harnett County Bd. of Educ., 158 N.C. App. 208,

212, 580 S.E.2d 732, 735 (2003) (quoting Pacheco v. Rogers & Breece, Inc., 157 N.C.

App. 445, 447, 579 S.E.2d 505, 507 (2003)). “A defendant may show he is entitled to

summary judgment by ‘(1) proving that an essential element of the plaintiff's case is

nonexistent, or (2) showing through discovery that the plaintiff cannot produce



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                                   Opinion of the Court



evidence to support an essential element of his or her claim, or (3) showing the

plaintiff cannot surmount an affirmative defense which would bar the claim.’ ”

Williams v. Advance Auto Parts, Inc., __ N.C. App. __ , __ , 795 S.E.2d 647, 651 (2017),

disc. review denied, 369 N.C. 563, 799 S.E.2d 45 (2017) (quoting Frank v. Funkhouser,

169 N.C. App. 108, 113, 609 S.E.2d 788, 793 (2005)). “If [the] moving party shows

that no genuine issue of material fact exists for trial, the burden shifts to the

nonmovant to adduce specific facts establishing a triable issue.” Self v. Yelton, 201

N.C. App. 653, 658-59, 688 S.E.2d 34, 38 (2010) (citing Will of Jones, 362 N.C. at 573,

669 S.E.2d at 576).

                                         Discussion

      On appeal, plaintiff argues that the trial court erred in granting defendants’

motion for summary judgment. We address each claim individually.

I. Trespass to Land Claim

      Plaintiff argues that the trial court erred in granting defendants’ motion for

summary judgment on plaintiff’s claim of trespass to land, asserting that a genuine

issue of material fact existed as to whether Otis Hill Logging was an independent

contractor, and that, “even if [d]efendants[’] contention that they did not personally

or manually remove the timber themselves is true, . . . they are liable as a joint

tortfeasor . . . .” We disagree.




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                                   Opinion of the Court



      As our Supreme Court has stated, “ ‘a claim of trespass requires: (1) possession

of the property by the plaintiff when the alleged trespass was committed; (2) an

unauthorized entry by the defendant; and (3) damage to [the] plaintiff [from the

trespass].’ ” Singleton v. Haywood Elec. Mbrshp. Corp., 357 N.C. 623, 627, 588 S.E.2d

871, 874 (2003) (quoting Fordham v. Eason, 351 N.C. 151, 153, 521 S.E.2d 701, 703

(1999)).

      “The general rule is that a company is not liable for the torts of an independent

contractor committed in the performance of the contracted work.” Coastal Plains

Utilities, Inc. v. New Hanover County, 166 N.C. App. 333, 344, 601 S.E.2d 915, 923

(2004) (citing Page v. Sloan, 12 N.C. App. 433, 439, 183 S.E.2d 813, 817 (1971), aff’d,

281 N.C. 697, 190 S.E.2d 189 (1972)). “A contractor meeting the requirements of an

independent contractor is, subject to exceptions discussed below, solely responsible

for his own wrongful acts.” Horne v. Charlotte, 41 N.C. App. 491, 493, 255 S.E.2d 290,

292 (1979) (citations omitted). In determining whether a person is an independent

contractor or an employee, the following factors are examined:

             whether the person (1) is engaged in an independent
             business, calling, or occupation; (2) is to have the
             independent use of his special skill, knowledge, or training
             in the execution of the work; (3) is doing a specified piece of
             work at a fixed price or for a lump sum or upon a
             quantitative basis; (4) is not subject to discharge because
             he adopts one method of doing the work rather than
             another; (5) is not in the regular employ of the other
             contracting party; (6) is free to use such assistants as he
             may think proper; (7) has full control over such assistants;


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                                   Opinion of the Court



              and (8) selects his own time.

Coastal Plains, 166 N.C. App. at 346, 601 S.E.2d at 924 (citing McCown v. Hines, 353

N.C. 683, 687, 549 S.E.2d 175, 177-78 (2001)). “ ‘No particular one of these factors is

controlling in itself, and all the factors are not required. Rather, each factor must be

considered along with all other circumstances to determine whether the [person]

possessed the degree of independence necessary for classification as an independent

contractor.’ ” Id. (quoting McCown, 353 N.C. at 687, 549 S.E.2d at 178).

      In the present case, plaintiff presented no evidence to the trial court that an

agency relationship existed between defendants and Otis Hill Logging. As a result,

the only evidence before the trial court was that of defendants, supporting their

contention that Otis Hill Logging was an independent contractor and not an agent of

defendants.

      Plaintiff further argues that, even if Otis Hill Logging was an independent

contractor, “[d]efendants are still liable in that they employed Otis Hill Logging to do

an act allegedly unlawful in itself, committing a trespass on [plaintiff’s] property.”

This argument is without merit.

      It is well established that “when a contractor, whether as an independent

contractor or employee, is employed to do an act allegedly unlawful in itself, such as

committing a trespass, the municipality is solely liable for the resulting damages.”

Horne, 41 N.C. App. at 493-94, 255 S.E.2d at 292 (citations omitted).



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                                   Opinion of the Court



      Here, plaintiff bases his argument on the contention that:

             [b]y all accounts, Mr. Cline, Mr. Thurman and an employee
             from Otis Hill Logging met prior to any timbering . . . to
             observe the property boundaries, [and] a dispute about
             which boundaries [were] shown exists. Despite this
             meeting and the inclusion of the legal description of the
             land to be cut in the timber assignment, an overcut
             occurred.

However, this evidence does not support the allegation that defendants contracted

with Otis Hill Logging to trespass on plaintiff’s property.

      Accordingly, there existed no genuine issue of material fact and defendants

were entitled to summary judgment on plaintiff’s claim for trespass to land.

II. Conversion Claim

      Next, plaintiff argues that the trial court erred in granting defendants’ motion

for summary judgment on plaintiff’s claim for conversion. We disagree.

      Under North Carolina law, “the tort of conversion is well defined as ‘an

unauthorized assumption and exercise of the right of ownership over goods or

personal chattels belonging to another, to the alteration of their condition or the

exclusion of an owner’s rights.’ ” Variety Wholesalers, Inc., v. Salem Logistics Traffic

Servs., LLC, 365 N.C. 520, 523, 723 S.E.2d 744, 747 (2012) (quoting Peed v.

Burleson’s, Inc., 244 N.C. 437, 439, 94 S.E.2d 351, 353 (1956) (alterations omitted)).

“Two essential elements are necessary in a claim for conversion: (1) ownership in the

plaintiff, and (2) a wrongful conversion by the defendant.” Bartlett Milling Co. v.



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                                   Opinion of the Court



Walnut Grove Auction & Realty Co., 192 N.C. App. 74, 86, 665 S.E.2d 478, 489 (2008)

(citing Lake Mary Ltd. P’ship. v. Johnston, 145 N.C. App. 525, 532, 551 S.E.2d 546,

552, disc. rev. denied, 354 N.C. 363, 557 S.E.2d 539 (2001)).

      Plaintiff asserts that the trial court erred in granting summary judgment on

his claim for conversion because “[d]efendants exercised the right of ownership over

timber belonging to [p]laintiff,” and because “[p]laintiff is the true owner of the timber

that was cut and harvested and which [d]efendant paid a total of $21,112.60 to Otis

Hill for the timber Otis Hill allegedly removed from [p]laintiff’s property.” Defendants

maintain that plaintiff’s assertion regarding the payment is incorrect; this payment

was for Cline’s timber, not Hamby’s. Defendants further assert that “[p]laintiff has

failed to put forward any evidence in the record that either Timothy Thurman or

Thurman Timber Company, LLC entered the [p]laintiff’s property or cut down any

trees.” We agree with defendants.

      Defendants presented evidence that they hired Otis Hill as an independent

contractor to cut the timber from Cline’s property. Plaintiff presented no evidence

that defendants personally converted any of his property, or that defendants

purchased the timber cut from plaintiff’s property. As a result, plaintiff failed, as a

matter of law, to establish a claim for conversion.       Defendants were entitled to

summary judgment on plaintiff’s claim for conversion.




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                                  Opinion of the Court



III. Negligence Claim

      Plaintiff argues that “genuine issues of material fact exist as to [who] entered

onto [p]laintiff’s land, if Otis Hill Logging is an independent contractor or employee

and whether [d]efendant[s] exercised the same degree of care which a reasonable and

prudent person would in similar conditions.” Plaintiff further argues that, “to the

extent Otis Hill Logging is an independent contractor, the work which they were

contracted to perform was unlawful in itself, therefore their negligence can be

imputed on [d]efendant.” We disagree.

      “Summary judgment is seldom appropriate in a negligence action. A trial court

should only grant such a motion where the plaintiff’s forecast of evidence fails to

support an essential element of the claim.” Wallen v. Riverside Sports Ctr., 173 N.C.

App. 408, 411, 618 S.E.2d 858, 861 (2005) (citing Bostic Packaging, Inc. v. City of

Monroe, 149 N.C. App. 825, 830, 562 S.E.2d 75, 79 (2002)).           Nonetheless,“[a]

‘[p]laintiff is required to offer legal evidence tending to establish beyond mere

speculation or conjecture every essential element of negligence, and upon failure to

do so, [summary judgment] is proper.’ ” Frankenmuth Ins. v. City of Hickory, 235

N.C. App. 31, 34, 760 S.E.2d 98, 101 (2014) (quoting Young v. Fun Services-Carolina,

Inc., 122 N.C. App. 157, 162, 468 S.E.2d 260, 263 (1996)).

      Actionable negligence has been defined as the “failure to exercise that degree

of care which a reasonable and prudent person would exercise under similar



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                                  Opinion of the Court



conditions. A defendant is liable for his negligence if the negligence is the proximate

cause of injury to a person to whom the defendant is under a duty to use reasonable

care.” Hart v. Ivey, 332 N.C. 299, 305, 420 S.E.2d 174, 177-78 (1992) (citations

omitted). In order to establish a prima facie case of negligence against the defendant,

the plaintiff must demonstrate that: “(1) the defendant owed the plaintiff a duty of

care; (2) the defendant’s conduct breached that duty; (3) the breach was the actual

and proximate cause of the plaintiff’s injury; and (4) plaintiff suffered damages as a

result of the injury.” Wallen, 173 N.C. App. at 411, 618 S.E.2d at 861 (quoting Vares

v. Vares, 154 N.C. App. 83, 87, 571 S.E.2d 612, 615 (2002), disc. review denied, 357

N.C. 67, 579 S.E.2d 576-77 (2003)).

      As discussed above, plaintiff presented no evidence that defendants personally

removed the timber from plaintiff’s property, much less removed it in a negligent

manner. Moreover, plaintiff presented no evidence that Otis Hill Logging was an

employee of defendants, and made no assertion that defendants were negligent in

hiring Otis Hill Logging to remove the timber from Cline’s property. Accordingly, the

trial court properly granted summary judgment in favor of defendants with regard to

plaintiff’s negligence claim.

IV. Damage to Real Property Claim

      In plaintiff’s complaint, he alleged a separate cause of action for damage to real

property. The claim of damage to real property was dismissed with prejudice by the



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trial court in its order granting summary judgment, from which plaintiff appeals.

However, in his brief, plaintiff fails to support this issue with either cogent argument

or citation to relevant legal authority. Accordingly, this argument has been

abandoned. See Wilson v. Pershing, LLC, __ N.C. App. __, __, 801 S.E.2d 150, 156

(2017) (quoting N.C.R. App. P. 28(b)(6)) (“Issues not presented in a party’s brief, or in

support of which no reason or argument is stated, will be taken as abandoned.”).

V. Piercing the Corporate Veil

      Finally, plaintiff asks that this Court permit him to resume litigation of his

“claim for piercing the corporate veil,” so that the usual limited liability of corporate

officers and directors may be disregarded. Piercing the corporate veil is a mechanism

that “allows injured parties to bring claims against individuals who otherwise would

have been shielded by the corporate form.” Green v. Freeman, 367 N.C. 136, 145, 749

S.E.2d 262, 270 (2013). As our Supreme Court has recognized, “[t]he doctrine of

piercing the corporate veil is not a theory of liability. Rather, it provides an avenue

to pursue legal claims against corporate officers or directors who would otherwise be

shielded by the corporate form.” Id. at 146, 749 S.E.2d at 271.

      In the present case, summary judgment was granted on plaintiff’s claims

against defendants. Accordingly, it is unnecessary for this Court to address plaintiff’s

additional arguments with regard to piercing the corporate veil.




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                               Opinion of the Court



                                     Conclusion

      For the reasons set forth above, the trial court’s order granting summary

judgment is

      AFFIRMED.

      Judges ELMORE and HUNTER, JR. concur.




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