             IN THE COURT OF APPEALS OF NORTH CAROLINA

                                 No. COA18-354

                             Filed: 15 January 2019

Bertie County, No. 15-CVS-264

BETTY BURDEN JACKSON, NANCY BURDEN ELLIOTT; JAMES BURDEN,
REBECCA BURTON BELL, DARREN BURTON, CLARENCE BURTON, JR. and
JOHN BURDEN, Plaintiffs,

            v.

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,


            v.


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.


      Appeal 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

Superior Court. Heard in the Court of Appeals 3 October 2018.


      Hornthal, Riley, Ellis & Maland, LLP, by M. H. Hood Ellis and Casey L.
      Peaden, for the Plaintiff.
                         JACKSON V. DON JOHNSON FORESTRY

                                   Opinion of the Court



      Yates, 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.

      Dixon & Thompson Law PLLC, by Paul Faison S. Winborne, for the Third-
      Party/Counterclaim Defendant Estate of Florida Bazemore.


      DILLON, Judge.


      This is 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.

                                     I. Background

      In 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.

      Mr. 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 remaindermen-grandchildren.

                                          -2-
                           JACKSON V. DON JOHNSON FORESTRY

                                      Opinion of the Court



       In 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 attorneys-in-fact.

       Shortly 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.

       In March 2014, Mr. Bazemore signed an agreement to sell the timber growing

on the Property to the Timber Buyer.

       During 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.

       In May 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 absolute.

       In October 2015, several of Mr. Burden’s grandchildren1 (the “Grandchildren”)

commenced this action against the Broker and the Timber Buyer for cutting timber


       1 The remaining grandchildren were subsequently made parties, denominated in the caption
as “Other Grandchildren Defendants.”

                                             -3-
                        JACKSON V. DON JOHNSON FORESTRY

                                  Opinion of the Court



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.

      The 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.

      In 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.

                                     II. Analysis

         A. Mrs. Bazemore’s Rights in the Trees During Her Life Tenancy




                                         -4-
                              JACKSON V. DON JOHNSON FORESTRY

                                          Opinion of the Court



        Rights in a particular piece of property have been described as a “bundle of

sticks”2 or “bundle of rights,”3 where various people/entities could own different rights

in that property. These rights include the right to timber the property.

        Mr. 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.

        Mr. 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




        2 See U.S. v. Craft, 535 U.S. 274, 278 (2002); Everett's Lake Corp. v. Dye, ___ N.C. App. ___, ___
n.1, ___ S.E.2d ___, ___ n.1, 2018 WL 4996362 (2018).
        3 In re Greens of Pine Glen, 356 N.C. 642, 651, 576 S.E.2d 316, 322 (2003).



                                                  -5-
                             JACKSON V. DON JOHNSON FORESTRY

                                         Opinion of the Court



“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 practicable
               unimpaired as to its natural capacities, and the
               improvements upon it.

Moore, 100 N.C. at 44, 6 S.E. at 271 (citations omitted).4

       Mr. Burden, however, bequeathed to Mrs. Bazemore more “sticks” in the

timber than that normally held by a life tenant, as was his right as the fee simple

owner. See Fletcher v. Bray, 201 N.C. 763, 767-68, 161 S.E. 383, 385-86 (1931).

Specifically, in addition to bequeathing to Mrs. Bazemore the “sticks” in the timber

normally reserved for a life tenant, Mr. Burden bequeathed to Mrs. Bazemore the

unfettered right to cut and sell any tree with a diameter of twelve (12) inches or more

(hereinafter the “Large Trees”) during her life tenancy.                  This arrangement was

similar to that in Fletcher v. Bray, where the fee simple owner bequeathed a life estate

in certain property to his wife and the right to dispose of the trees thereon for any




       4  In an opinion written by Judge John Haywood in 1800, the Court of Conference, which was
our State’s appellate court prior to the establishment of our Supreme Court in 1818, defined waste by
a life tenant as “an unnecessary cutting down and disposing of timber, or destruction thereof upon
wood lands, where there is already sufficient cleared land for the [life tenant] to cultivate, and over
and above what is necessary to be used for fuel, fences, plantation utensils and the like[.]” Ballentine
v. Poyner, 3 N.C. 268, 269 (1800).

                                                 -6-
                          JACKSON V. DON JOHNSON FORESTRY

                                    Opinion of the Court



reason during her life tenancy, with the remainder to his nephews and nieces in fee

simple. Id. Our Supreme Court held that this arrangement was lawful:

              The court holds the opinion that the standing timber was
              severed by the testator from the fee and the absolute
              dominion thereof given the wife, and such severance was
              designed for her benefit rather than for the benefit of [the
              remaindermen]. Therefore, [wife], upon the sale of the
              timber, was entitled to hold the proceeds in her own right
              as her own property [and had the right to bequeath the
              proceeds as she saw fit].

Id. at 768, 161 S.E. at 386.

       Therefore, Mrs. Bazemore had the unfettered right during her life tenancy to

profit from any Large Tree, pursuant to Mr. Burden’s will. However, her right to the

smaller trees during her life tenancy was limited to that of a life tenant.

           B. The Grandchildren’s Right to Seek Relief as Remaindermen

       Where there is an unauthorized cutting of trees during a life tenancy, the

remaindermen may seek relief. But the type of relief that a remainderman can seek

depends on whether his interest is vested or contingent.

       Our Supreme Court has held that a vested remainderman or reversioner “has

his election either to bring trover for the value of the tree after it is cut, or an action

[for trespass] on the case in the nature of waste, in which, besides the value of the

tree considered as timber, he may recover damages for any injury to the inheritance

which is consequent upon the destruction of the tree.” Burnett v. Thompson, 51 N.C.




                                           -7-
                         JACKSON V. DON JOHNSON FORESTRY

                                   Opinion of the Court



210, 213 (1858). Indeed, the right to bring an action for waste has been codified in

Chapter 1, Article 42 of our General Statutes. See N.C. Gen. Stat. § 1-42 (2017).

      However, the owner of a contingent future interest “cannot recover damages

for waste already committed, [but] they are entitled to have their [contingent]

interests protected from [future] threatened waste or destruction by injunctive relief.”

Gordon v. Lowther, 75 N.C. 193, 193 (1876); see also Peterson v. Ferrell, 127 N.C. 169,

170, 37 S.E. 189, 190 (1900) (holding that both vested and contingent remaindermen

have the right to seek an injunction to protect against future waste); Edens v. Foulks,

2 N.C. App. 325, 331, 163 S.E.2d 51, 54 (1968) (stating that “[i]t is well settled in this

State, as in other states, that a contingent remainderman is entitled to an injunction

to prevent a person in possession from committing future waste”).

      In the present case, the Timber Buyer argues that the Grandchildren have no

standing to sue for damages because they were mere contingent remaindermen when

the trees were cut.      We conclude, though, that it is irrelevant whether the

Grandchildren’s remaindermen interest in the Property was vested or contingent

under Mr. Burden’s will: They did not bring suit until after Mrs. Bazemore’s death,

after their interest became a vested fee simple interest. Though neither party cites

a case on point on this issue, we conclude that once a contingent remainderman’s

interest vests, he may bring suit for damages, even for acts committed during the life

tenancy. Indeed, in discussing the limited right of a contingent remainderman to



                                          -8-
                              JACKSON V. DON JOHNSON FORESTRY

                                           Opinion of the Court



seek only injunctive relief, our Supreme Court stated that a contingent

remainderman “could not maintain [an] action [for damages] during the life of the

first taker.” Latham v. Roanoke R. & Lumber Co., 139 N.C. 9, 51 S.E. 780, 780 (1905)

(emphasis added). Our Supreme Court reasoned that, during the life tenancy, it is

impossible to know what, if any, damage any particular contingent remainderman

will suffer or which remainderman will vest and actually will suffer the damage. Id.

at 11-12, 51 S.E. at 780-81.5 But once the life tenancy terminates, this concern goes

away.6

        Further, our General Assembly has provided that any remainderman whose

interest has become a vested present interest may sue for damages for timber cut

during the preceding life tenancy. N.C. Gen. Stat. § 1-537 (2017) (“Every heir may

bring action for waste committed on lands . . . of his own inheritance, as well in the

time of his ancestor as in his own.”)




        5  Our holding on this issue is the rule in other jurisdictions as well. See, e.g., Fisher’s Ex’r v.
Haney, 180 Ky. 257, 262, 202 S.W. 495, 497 (1918) (holding that though a contingent remainderman
can only seek injunctive relief during the life tenancy, this limiting rule has no application once the
remainderman becomes vested at the death of the life tenant); In re Estate of Hemauer, 135 Wis. 2d
542, 401 N.W.2d 27, 1986 Wisc. App. LEXIS 3973, *3 (1986) (holding “that the [contingent]
remaindermen’s cause of action for waste did not accrue until [the life tenant’s] death because the
remaindermen had no right to enforce prior to her death”).
         6 Neither party makes any argument that the Grandchildren’s claims are time-barred, and it

does not appear that they are. But we note that claims of a remainderman for waste committed during
the life tenancy but brought after the death of the life tenant may be time-barred. See, e.g., McCarver
v. Blythe, 147 N.C. App. 496, 499, 555 S.E.2d 680, 683 (2001).

                                                   -9-
                        JACKSON V. DON JOHNSON FORESTRY

                                  Opinion of the Court



      Therefore, we conclude that the Grandchildren do have standing to seek relief

for damage caused by any unauthorized cutting of timber on the Property which

occurred during Mrs. Bazemore’s life tenancy.

                                 C. The Large Trees

      The Grandchildren argue that they are entitled to damages for the trees which

were cut, contending that the contract between Mr. Bazemore (purportedly signed on

behalf of Mrs. Bazemore) and the Timber Buyer was not validly executed.

      We conclude that the Grandchildren have no claim regarding the Large Trees.

Even if the contract was not valid, any claim pertaining to the cutting of Large Trees

which occurred during the life tenancy of Mrs. Bazemore belonged to Mrs. Bazemore

alone, and now to her estate. That is, the Large Trees belonged to Mrs. Bazemore

during the life tenancy pursuant to the express grant in Mr. Burden’s will, and they

were cut during the life tenancy. Unlike typical remaindermen, because of Mr.

Burden’s express grant to Mrs. Bazemore (and the other life tenants), the

Grandchildren had no rights in the Large Trees during the life tenancy, see Fletcher,

201 N.C. at 768, 161 S.E. at 386; and, therefore, they had no rights in the Large Trees

which were severed from the Property during the life tenancy. Therefore, assuming

that the Large Trees were cut without Mrs. Bazemore’s authorization, it is Mrs.

Bazemore who suffered. The Grandchildren can make no claim for waste of their

inheritance since Mr. Burden had “severed” the Large Trees from the fee that they



                                         - 10 -
                         JACKSON V. DON JOHNSON FORESTRY

                                   Opinion of the Court



were entitled to inherit. Id. And they have no claim for trover, as the Large Trees,

once cut, belonged to Mrs. Bazemore.

                                  D. The Small Trees

      We conclude that the Grandchildren are entitled to any damage caused by the

cutting of trees less than twelve (12) inches in diameter (hereinafter the “Small

Trees”) by the Timber Buyer. Mrs. Bazemore’s interest in the Small Trees was only

that of a life tenant, as Mr. Burden did not expressly grant her any additional rights

in the Small Trees in his will. And there was no evidence offered at summary

judgment suggesting that the Small Trees were cut for any reason other than for

profit, which, as explained above, is not permissible for a life tenant to enjoy.

      The Timber Buyer argues that it is entitled to summary judgment, in any

event, because the Grandchildren failed to put on any evidence showing that any of

the trees cut by the Timber Buyer were, in fact, Small Trees. However, we conclude

that there was enough evidence presented to survive summary judgment on this

point. Specifically, the contract with the Timber Buyer provided that the Property

would be “clear cut,” suggesting that all of the marketable trees on the Property

would be cut, not just the Large Trees. Further, the evidence identifies the types of

trees which were actually cut by the Timber Buyer, including trees used for “pulp”

and “chip-in-saw,” which are typically made from smaller trees, less than twelve (12)

inches in diameter. It certainly would have been better if the Grandchildren had



                                          - 11 -
                         JACKSON V. DON JOHNSON FORESTRY

                                   Opinion of the Court



offered an affidavit of a witness who expressly stated that at least one Small Tree

was cut. However, we conclude that the record was sufficient to create an issue of

fact that at least one Small Tree was cut, and therefore sufficient to reach the jury on

the question of damages.

                             E. Liability of Timber Buyer

      Our Supreme Court has held that a third party may be liable to a

remainderman whose interest has vested for wrongfully cutting timber, specifically,

for trover (the value of the trees) or for “an action on the case in the nature of waste”

(the damage to the land). Burnett, 51 N.C. at 213.

      Our Supreme Court has held that even if the third party contracts with the life

tenant to cut timber, the third party is still liable to the remaindermen if any cutting

is unauthorized. Dorsey, 100 N.C. at 45, 6 S.E. at 272. That is, it is no excuse that

the third party acted under a contract with the life tenant, where the life tenant,

otherwise, had no right to have the timber cut:

             The judgment, it seems, is founded upon the supposition
             that the contract between the life-tenant in possession and
             the [third party], purporting to give them the right to cut
             and remove the timber, had the legal effect to exempt [the
             third party] from liability to the [remaindermen] on such
             account. This was a misapprehension of the law applicable.

Id.at 45-6, 6 S.E. at 272.

      Therefore, we conclude that the Timber Buyer is liable to the Grandchildren

for any damage caused by the cutting of the Small Trees.


                                          - 12 -
                        JACKSON V. DON JOHNSON FORESTRY

                                  Opinion of the Court



      But we further conclude that the Timber Buyer is not liable for double damages

pursuant to N.C. Gen. Stat. § 1-539.1. Specifically, our Court has held that a third

party is not liable for double damages under this statute if the third party was not

trespassing on the land itself when the cutting occurred. Matthews v. Brown, 62 N.C.

App. 559, 561, 303 S.E.2d 223, 225 (1983). In Matthews, a timber company had the

contractual right to enter upon a tract of land and cut some trees, but the evidence

demonstrated that the company cut more trees than it was authorized to cut. Id. at

560, 303 S.E.2d at 224. We held that the award of damages for the unauthorized

cutting of trees was appropriate, but that the doubling of the award was not since the

company was lawfully on the land. Id. at 561, 303 S.E.2d at 225 (holding that N.C.

Gen. Stat. § 1-539.1 does not apply unless the defendant was a “trespasser to the

land”). In the present case, the Timber Buyer was authorized by Mr. Bazemore, who

was acting within his apparent authority as Mrs. Bazemore’s agent, to enter the

Property and was therefore not a trespasser.

                  F. Indemnity from the Estates of the Bazemores

      The trial court concluded that the estates of Mr. and Mrs. Bazemore are liable

to indemnify the Timber Buyer, as a matter of law. We agree.

      As to Mrs. Bazemore’s liability, the third party may be entitled to indemnity

from the life tenant with whom he contracted. N.C. Gen. Stat. § 1-539.1(c). And,

here, we conclude that the evidence establishes, as a matter of law, that Mr.



                                         - 13 -
                             JACKSON V. DON JOHNSON FORESTRY

                                        Opinion of the Court



Bazemore was acting as Mrs. Bazemore’s agent when he contracted with the Timber

Buyer.

       As to Mr. Bazemore’s liability, our Supreme Court has held that “[a]n agent

who makes a contract for an undisclosed principal is personally liable as a party to it

unless the other party had actual knowledge of the agency and of the principal’s

identity.” Howell v. Smith, 261 N.C. 256, 258-59, 134 S.E.2d 381, 383 (1964).

                                          G. The Broker

       The Grandchildren argue that the Broker, with whom Mr. Bazemore

contracted to procure a buyer, was liable to them for any unauthorized cutting.

       The trial court held that the Broker was not liable, as a matter of law. We

agree. Section 32A-407 of our General Statutes provides that a person who relies in

good faith on a power of attorney is not responsible for the misapplication of property,

even where the attorney-in-fact exceeds or improperly exercises his authority.

       Here, there was no evidence of actionable negligence or bad faith on the part

of the Broker in this case. The evidence shows that the Broker reasonably acted in

good faith to ensure that Mr. Bazemore had the authority to sell the timber on the

Property: Mr. Bazemore assured the Broker of his authority to sell all of the timber

on the Property; the Broker spoke to the Bazemores’ attorney to confirm Mr.

Bazemore’s authority to sell the timber; the Broker communicated with all of Mrs.


       7  N.C. Gen. Stat. § 32A-40 (2017) has since been recodified as N.C. Gen. Stat. § 32C-1-119(c),
effective as of 1 January 2018.

                                               - 14 -
                        JACKSON V. DON JOHNSON FORESTRY

                                  Opinion of the Court



Bazemore’s attorneys-in-fact; and the Broker checked the tax card to ensure that Mrs.

Bazemore was the record owner of the Property. We believe that it is too much to ask

this Broker, who is not an attorney, to have reviewed Mr. Burden’s will and to have

done any more to understand the exact rights Mrs. Bazemore had in the trees on the

Property.

                                   III. Conclusion

      As a matter of law, the Grandchildren are entitled to damages from the Timber

Buyer for any Small Trees they are able to prove on remand were cut by the Timber

Buyer, but not for double damages pursuant to N.C. Gen. Stat. § 1-539.1.

      As a matter of law, the Grandchildren are not entitled to any damages from

the Timber Buyer for any Large Trees which were cut.

      And since whether the Grandchildren are entitled to any damages is still to be

determined on remand, it was error for the trial court to award costs to the

Grandchildren in its summary judgment order. The trial court may consider whether

an award of costs in favor of the Grandchildren would be appropriate at the

appropriate time on remand.

      The Grandchildren are not entitled to any damages from the Broker for any of

the trees (whether Large or Small) which were cut, as a matter of law. And the trial

court did not err in awarding the Broker its costs.




                                         - 15 -
                        JACKSON V. DON JOHNSON FORESTRY

                                 Opinion of the Court



      The estates of Mr. and Mrs. Bazemore are liable to Timber Buyer for indemnity

for any liability of the Timber Buyer to the Grandchildren for damage caused by any

wrongful cutting of the Small Trees, as a matter of law. And the trial court properly

awarded costs to the Timber Buyer.

      AFFIRMED IN PART, REVERSED IN PART, REMANDED IN PART.

      Judges STROUD and BERGER concur.




                                        - 16 -
