{ "id": 11915647, "name": "HARRY HUBERTH, SANDY HUBERTH, and ANNE M. HUBERTH v. JERRY L. HOLLY and SALLY DOHNER", "name_abbreviation": "Huberth v. Holly", "decision_date": "1995-10-03", "docket_number": "No. COA94-1162", "first_page": "348", "last_page": "356", "citations": [ { "type": "official", "cite": "120 N.C. App. 348" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "95 ALR3d 508", "category": "reporters:specialty", "reporter": "A.L.R. 3d", "opinion_index": -1 }, { "cite": "1 ALR3d 801", "category": "reporters:specialty", "reporter": "A.L.R. 3d", "opinion_index": -1 }, { "cite": "417 S.E.2d 447", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1992, "pin_cites": [ { "parenthetical": "award of nominal damages supports award of punitive damages" } ], "opinion_index": 0 }, { "cite": "331 N.C. 743", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2502432 ], "year": 1992, "pin_cites": [ { "parenthetical": "award of nominal damages supports award of punitive damages" } ], "opinion_index": 0, "case_paths": [ "/nc/331/0743-01" ] }, { "cite": "459 S.E.2d 801", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1995, "pin_cites": [ { "page": "804", "parenthetical": "nominal damage award proper even though no showing of actual damage" }, { "parenthetical": "Greene, J. dissenting" } ], "opinion_index": 0 }, { "cite": "119 N.C. App. 608", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11916852 ], "year": 1995, "pin_cites": [ { "page": "611", "parenthetical": "nominal damage award proper even though no showing of actual damage" } ], "opinion_index": 0, "case_paths": [ "/nc-app/119/0608-01" ] }, { "cite": "397 S.E.2d 215", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1990, "opinion_index": 0 }, { "cite": "327 N.C. 484", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2496109, 2499343, 2497841, 2493556, 2494197 ], "year": 1990, "opinion_index": 0, "case_paths": [ "/nc/327/0484-05", "/nc/327/0484-04", "/nc/327/0484-02", "/nc/327/0484-03", "/nc/327/0484-01" ] }, { "cite": "394 S.E.2d 462", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1990, "pin_cites": [ { "page": "467-68" } ], "opinion_index": 0 }, { "cite": "100 N.C. App. 24", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8526227 ], "year": 1990, "pin_cites": [ { "page": "33" } ], "opinion_index": 0, "case_paths": [ "/nc-app/100/0024-01" ] }, { "cite": "458 S.E.2d 230", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1995, "pin_cites": [ { "page": "232" } ], "opinion_index": 0 }, { "cite": "119 N.C. App. 229", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11914275 ], "year": 1995, "pin_cites": [ { "page": "230" } ], "opinion_index": 0, "case_paths": [ "/nc-app/119/0229-01" ] }, { "cite": "92 S.E.2d 393", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1956, "pin_cites": [ { "page": "396" } ], "opinion_index": 0 }, { "cite": "244 N.C. 23", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2219545 ], "year": 1956, "pin_cites": [ { "page": "26" } ], "opinion_index": 0, "case_paths": [ "/nc/244/0023-01" ] }, { "cite": "135 S.E.2d 640", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1964, "pin_cites": [ { "page": "645" } ], "opinion_index": 0 }, { "cite": "261 N.C. 539", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8574525 ], "year": 1964, "pin_cites": [ { "page": "546" } ], "opinion_index": 0, "case_paths": [ "/nc/261/0539-01" ] }, { "cite": "134 S.E.2d 186", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1964, "pin_cites": [ { "page": "190" } ], "opinion_index": 0 }, { "cite": "261 N.C. 31", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8571586 ], "year": 1964, "pin_cites": [ { "page": "35" } ], "opinion_index": 0, "case_paths": [ "/nc/261/0031-01" ] }, { "cite": "157 S.E.2d 378", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1967, "pin_cites": [ { "page": "379", "parenthetical": "attorney fees only allowed as costs pursuant to express statutory authority" } ], "opinion_index": 0 }, { "cite": "271 N.C. 702", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8566667 ], "year": 1967, "pin_cites": [ { "page": "704", "parenthetical": "attorney fees only allowed as costs pursuant to express statutory authority" } ], "opinion_index": 0, "case_paths": [ "/nc/271/0702-01" ] }, { "cite": "502 N.E.2d 532", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1987, "pin_cites": [ { "page": "535-36", "parenthetical": "personal purpose doctrine applied to prevent \"miscarriage of justice\"" } ], "opinion_index": 0 }, { "cite": "294 S.E.2d 224", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1982, "opinion_index": 0 }, { "cite": "306 N.C. 558", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8572362, 8572333, 8572399, 8572305, 8572253 ], "year": 1982, "opinion_index": 0, "case_paths": [ "/nc/306/0558-04", "/nc/306/0558-03", "/nc/306/0558-05", "/nc/306/0558-02", "/nc/306/0558-01" ] }, { "cite": "290 S.E.2d 787", "category": "reporters:state_regional", "reporter": "S.E.2d", "pin_cites": [ { "page": "789" } ], "opinion_index": 0 }, { "cite": "57 N.C. App. 159", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8522782 ], "pin_cites": [ { "page": "162-63" } ], "opinion_index": 0, "case_paths": [ "/nc-app/57/0159-01" ] }, { "cite": "454 S.E.2d 652", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1995, "opinion_index": 0 }, { "cite": "340 N.C. 113", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 790208, 790112, 790085, 790184 ], "year": 1995, "opinion_index": 0, "case_paths": [ "/nc/340/0113-01", "/nc/340/0113-04", "/nc/340/0113-02", "/nc/340/0113-03" ] }, { "cite": "449 S.E.2d 34", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1994, "pin_cites": [ { "page": "38-39", "parenthetical": "in trespass case, where plaintiff presented evidence of both replacement cost and diminution in value, the replacement cost was relevant to determine reasonable market value of property" } ], "opinion_index": 0 }, { "cite": "116 N.C. App. 584", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8525070 ], "year": 1994, "pin_cites": [ { "page": "590-91", "parenthetical": "in trespass case, where plaintiff presented evidence of both replacement cost and diminution in value, the replacement cost was relevant to determine reasonable market value of property" } ], "opinion_index": 0, "case_paths": [ "/nc-app/116/0584-01" ] }, { "cite": "213 S.E.2d 198", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1975, "opinion_index": 0 }, { "cite": "287 N.C. 1", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8560916 ], "year": 1975, "opinion_index": 0, "case_paths": [ "/nc/287/0001-01" ] }, { "cite": "209 S.E.2d 401", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1974, "pin_cites": [ { "page": "405", "parenthetical": "improper to instruct that replacement cost is measure of damages" }, { "page": "405" } ], "opinion_index": 0 }, { "cite": "23 N.C. App. 388", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8550686 ], "year": 1974, "pin_cites": [ { "page": "393-94", "parenthetical": "improper to instruct that replacement cost is measure of damages" } ], "opinion_index": 0, "case_paths": [ "/nc-app/23/0388-01" ] }, { "cite": "398 S.E.2d 325", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1990, "pin_cites": [ { "page": "328", "parenthetical": "easement by estoppel created only where \"the party to be estopped . . . misled the party asserting the estoppel either by some words or action or by silence\"" } ], "opinion_index": 0 }, { "cite": "327 N.C. 616", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2495544 ], "year": 1990, "pin_cites": [ { "page": "621", "parenthetical": "easement by estoppel created only where \"the party to be estopped . . . misled the party asserting the estoppel either by some words or action or by silence\"" } ], "opinion_index": 0, "case_paths": [ "/nc/327/0616-01" ] }, { "cite": "319 S.E.2d 145", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "pin_cites": [ { "page": "148", "parenthetical": "collateral estoppel requires that parties to prior action are identical or in privity with the parties in the present case" } ], "opinion_index": 0 }, { "cite": "311 N.C. 727", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4679919 ], "year": 1984, "pin_cites": [ { "page": "731", "parenthetical": "collateral estoppel requires that parties to prior action are identical or in privity with the parties in the present case" } ], "opinion_index": 0, "case_paths": [ "/nc/311/0727-01" ] }, { "cite": "332 S.E.2d 509", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1985, "pin_cites": [ { "page": "511" }, { "page": "511", "parenthetical": "offer of dedication must be accepted \"in some recognized legal manner by the proper public authorities\"" } ], "opinion_index": 0 }, { "cite": "76 N.C. App. 309", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8527109 ], "year": 1985, "pin_cites": [ { "page": "311" } ], "opinion_index": 0, "case_paths": [ "/nc-app/76/0309-01" ] }, { "cite": "326 S.E.2d 11", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "pin_cites": [ { "page": "15", "parenthetical": "a valid contract cannot exist until both parties' minds meet as to all terms" } ], "opinion_index": 0 }, { "cite": "313 N.C. 98", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4724307 ], "year": 1985, "pin_cites": [ { "page": "103", "parenthetical": "a valid contract cannot exist until both parties' minds meet as to all terms" } ], "opinion_index": 0, "case_paths": [ "/nc/313/0098-01" ] } ], "analysis": { "cardinality": 847, "char_count": 19193, "ocr_confidence": 0.739, "pagerank": { "raw": 1.459230793202555e-07, "percentile": 0.65696899703419 }, "sha256": "8ef33704082cb4b8de4cf1ba6d3cf5773133fec4406d83c09df346c4b7bc7428", "simhash": "1:9f0a7583f64c1f30", "word_count": 3166 }, "last_updated": "2023-07-14T16:17:04.771230+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges WYNN and MARTIN, John C., concur." ], "parties": [ "HARRY HUBERTH, SANDY HUBERTH, and ANNE M. HUBERTH v. JERRY L. HOLLY and SALLY DOHNER" ], "opinions": [ { "text": "GREENE, Judge.\nJerry L. Holly and Sally Dohner (defendants) appeal from a judgment of the trial court, entered by the court without a jury, awarding compensatory and punitive damages to Harry Huberth, Sandy Huberth and Anne M. Huberth (plaintiffs) and awarding costs of litigation, including attorney fees, to plaintiffs.\nOn 17 September 1990, plaintiffs sued defendants for damages as a result of defendants\u2019 violation of N.C. Gen. Stat. \u00a7 113A-52(6), the Sedimentation Pollution Control Act (the Act), and for property damage resulting from the negligent removal of several trees from plaintiffs\u2019 property as the result of defendants\u2019 road construction on plaintiffs\u2019 property. Defendants \u201craised the existence of [an] easement as an affirmative defense to\u201d plaintiffs\u2019 property damage claim.\nThe undisputed facts are that in 1964, Anne Huberth purchased approximately seventy-two acres of property (Huberth tract) in Moore County from the Moore County Company, Incorporated, subject to an \u201ceasement of right-of-way of Yadkin Road lying within the boundaries of afore-described premises.\u201d Subsequently she transferred ten acres to her son and daughter-in-law, Harry and Sandy Huberth, on which they built their home. Along the southwest boundary of the Huberth tract, lies the \u201cOld Yadkin Road,\u201d which served as a public right-of-way until 1919. The \u201cOld Yadkin Road\u201d is no longer in use by any vehicular traffic.\nOn 2 May 1990, Anne Huberth agreed to sign an \u201cAgreement and Easement\u201d which would grant Haskell A. Duncan (Duncan), an adjoining landowner, an easement over a portion of her property. Anne Huberth\u2019s agreement to sign the \u201cAgreement and Easement\u201d was subject, however, to the condition that the easement should not be greater than sixteen feet wide and that Duncan should not remove any trees within the \u201cright-of-way.\u201d Other adjacent land owners signed this \u201cAgreement and Easement,\u201d which was dated 26 February 1990 and recorded in the Moore County Register of Deeds Office. Although this instrument restricted the width of the \u201cright-of-way\u201d to sixteen feet, it did not contain any language which would prohibit the removal of trees. Furthermore, Anne Huberth did not sign this instrument.\nIn an earlier Declaratory Judgment action, the Moore County Superior Court determined that an easement, in favor of Duncan, existed over a portion of another landowner\u2019s (Oakwin, Inc.) property, which is adjacent to the Huberth tract and is within the boundaries of the \u201cOld Yadkin Road.\u201d\nOn 23 March 1990, and by deed recorded 4 September 1990, Duncan conveyed his interest in the land (Holly tract) adjoining the Huberth tract to defendant, Jerry Holly. Defendants then agreed to work together to develop the Holly tract into ten separate lots, and it is undisputed that they were partners in the development of the Holly tract. In their effort to develop the Holly tract, defendants began clearing the \u201cOld Yadkin Road\u201d to create an access road to the property. It is also not disputed that defendant Holly destroyed a \u201cNo Trespassing\u201d sign, which plaintiffs had erected on the Huberth tract in the course of working on the access road. In their effort to create the access road, defendants also removed ten large loblolly pine trees, a large number of smaller trees and a larger number of ground-cover plants. Prior to beginning their work bn the access road, defendants did not seek or receive an erosion control plan from the State, as required by the Act, and failed to install erosion control devices.\nThe trial court made, among other findings, the undisputed finding of fact that \u201c[d]efendants knew that [p]laintiffs did not want them to install an access road across the Huberth Tract.\u201d The trial court then concluded that no easement existed over the Huberth tract. The trial court then, based on replacement cost (the only evidence offered by the plaintiffs), awarded plaintiffs $14,590 in compensation for the damage to the trees and groundcover.\nThe plaintiffs\u2019 attorney submitted an affidavit, in support of his request for attorney fees, showing that he spent 190 hours on plaintiffs\u2019 case. The affidavit, however, did not distinguish between time spent on the portion of plaintiffs\u2019 claim under the Act and the portion of plaintiffs\u2019 claim for negligent property damage. In addition to the compensatory award the trial court ordered that defendants pay jointly and severally $5,000 in punitive damages, and pursuant to the Act, $24,524.16 for the cost of the litigation, including an attorney fee of $19,000. The trial court further awarded nominal damages as a result of defendants\u2019 admitted violation of the Act.\nDefendants appealed to this Court and, in response to defendants\u2019 appeal, plaintiffs submitted a forty-five page brief, in violation of Appellate Rule 28(j). N.C. R. App. P. 28Q) (imposing a thirty-five page limit on all briefs filed in this Court).\nThe issues are (I) whether an easement existed over the portion of Anne Huberth\u2019s property known as the \u201cOld Yadkin Road\u201d in favor of defendants or in favor of the public; (II) if an easement did not exist, whether the trial court applied the correct measure of damages; (III) whether the trial court erred in awarding $19,000 in attorney fees; and (IV) whether the trial court erred in its award of punitive damages.\nI\nDefendants argue that they are not responsible for any damage to the plaintiffs\u2019 property because they have an easement across the property in question. The easement, defendants contend, arises by virtue of any of the following: (a) Anne Huberth\u2019s agreement with Duncan to sign an \u201cAgreement and Easement,\u201d (b) the deed by which Anne Huberth took her property contained language of dedication, (c) collateral estoppel, in that Anne Huberth is bound by an earlier Declaratory Judgment action against Oakwin, Inc., or (d) estoppel, because Anne Huberth failed to act before defendants expended money and effort on developing the \u201cOld Yadkin Road.\u201d\nThe evidence does not support an easement on either of the bases asserted by the defendants. The offer, in the letter, to sign an easement was. conditioned on Duncan not removing any trees within the right-of-way. This condition was not accepted and thus no agreement was entered. Normile v. Miller and Segal v. Miller, 313 N.C. 98, 103, 326 S.E.2d 11, 15 (1985) (a valid contract cannot exist until both parties\u2019 minds meet as to all terms). Assuming that the language in Anne Huberth\u2019s 1964 deed was an offer of dedication of the \u201cOld Yadkin Road,\u201d Cavin v. Ostwalt, 76 N.C. App. 309, 311, 332 S.E.2d 509, 511 (1985), there is no evidence that any public authority of Moore County accepted the dedication. Id. at 312, 332 S.E.2d at 511 (offer of dedication must be accepted \u201cin some recognized legal manner by the proper public authorities\u201d). The plaintiffs were not parties in the declaratory judgment action nor is there any evidence that they were in privity with the parties to that action. Thus that judgment is not binding on the plaintiffs. State v. Lewis, 311 N.C. 727, 731, 319 S.E.2d 145, 148 (1984) (collateral estoppel requires that parties to prior action are identical or in privity with the parties in the present case). Finally, there is no evidence in this record that plaintiffs led the defendants to believe that plaintiffs had granted them an easement. In fact, Anne Huberth placed a \u201cNo Trespassing\u201d sign on the property, prior to the date the defendants began their land clearing, and the defendants destroyed and ignored the sign. Thus, the plaintiffs are not estopped to assert this claim. Carroll v. Daniels and Daniels Constr. Co., 327 N.C. 616, 621, 398 S.E.2d 325, 328 (1990) (easement by estoppel created only where \u201cthe party to be estopped . . . misled the party asserting the estoppel either by some words or action or by silence\u201d).\nAccordingly, the trial court correctly determined that no easement existed over the portion of Anne Huberth\u2019s property on which the \u201cOld Yadkin Road\u201d lies.\nII\nIn the alternative, the defendants argue that the trial court incorrectly determined damages in that it based its award on the replacement cost of the trees and the groundcover plants. We agree.\nWe first note that the plaintiffs were not entitled to recover any damages for the loss of trees and groundcover as a result of the violations of the Act. The Act authorizes \u201c[a]ny person injured by [its] violation . . . [to] bring a civil action [seeking damages] against the person alleged to be in violation.\u201d N.C.G.S. \u00a7 113A-66(a) (1994). To be recoverable, the damages sought by the plaintiffs must be \u201ccaused by the violation.\u201d Id. In this case, there is no evidence that the violations of the Act caused the loss of the- trees and/or the groundcover and indeed the trial court awarded only nominal damages for these violations.\nWith regard to the plaintiffs\u2019 claim for negligent damage to real property, the general rule is that where the injury is completed (as opposed to a continuing wrong) the measure of damages \u201cis the difference between the market value of the property before and after the injury.\u201d Huff v. Thornton, 23 N.C. App. 388, 393-94, 209 S.E.2d 401, 405 (1974) (improper to instruct that replacement cost is measure of damages), aff\u2019d, 287 N.C. 1, 213 S.E.2d 198 (1975). Nonetheless, replacement and repair costs are relevant on the question of diminution in value and when there is evidence of both diminution in value and replacement cost, the trial court must instruct the jury to consider the replacement cost in assessing the diminution in value. Id. at 395, 209 S.E.2d at 405; Lee v. Bir, 116 N.C. App. 584, 590-91, 449 S.E.2d 34, 38-39 (1994) (in trespass case, where plaintiff presented evidence of both replacement cost and diminution in value, the replacement cost was relevant to determine reasonable market value of property), cert. denied, 340 N.C. 113, 454 S.E.2d 652 (1995); Dan B. Dobbs, Dobbs Law of Remedies \u00a7 5.2(2) (2d ed. 1993) (allowing evidence of both measures of damages prevents \u201cwindfalls and economic waste\u201d). When, however, the land is used for a purpose that is personal to the owner, the replacement cost is an acceptable measure of damages. Plow v. Bug Man Exterminators, Inc., 57 N.C. App. 159, 162-63, 290 S.E.2d 787, 789 (termite damage to personal residence), disc. rev. denied, 306 N.C. 558, 294 S.E.2d 224 (1982); Dobbs at \u00a7 5.2(2), 718; Restatement (Second) of Torts \u00a7 929 cmt. b (1979); see also Trinity Church v. John Hancock Mut. Life Ins. Co., 502 N.E.2d 532, 535-36 (Mass. 1987) (personal purpose doctrine applied to prevent \u201cmiscarriage of justice\u201d).\nIn this case, the record reveals that the injury to the plaintiffs\u2019 property was \u201ccompleted\u201d and there is no evidence that the property was used for a purpose that was personal to the plaintiffs. Thus, the proper measure of damages was the difference in the fair market value of the property before and after the negligent injury and the trial court erred in assessing damages on the basis of the replacement cost of the trees and groundcover. Furthermore, because the plaintiffs presented no evidence of diminution in value it is unnecessary to remand to the trial court for the setting of a new damage award.\nIll\nDefendants next argue that the award of attorney fees pursuant to the Act was improper, because plaintiffs\u2019 attorney did not distinguish between fees earned pursuing plaintiffs\u2019 claims under the Act and those earned pursuing the common law claim.\nThe defendants correctly state the law that attorney fees are recoverable pursuant to the Act as a cost of litigation, N.C.G.S. \u00a7 113A-73(c) (1994), and are not recoverable under plaintiffs\u2019 common law negligent injury to property claim. Bowman v. Comfort Chair Co., Inc., 271 N.C. 702, 704, 157 S.E.2d 378, 379 (1967) (attorney fees only allowed as costs pursuant to express statutory authority). We need not, however, reach the issue raised by the defendants because they failed to raise this issue before the trial court. N.C. R. App. R 10(b)(1) (\u201c[i]n order to preserve a question for appellate review, a party must have presented to the trial court a timely request, objection or motion\u201d).\nIV\nThe defendants finally argue that the punitive damage award must be reversed because it cannot be supported by either the property damage claim or the Act.\nThe Act only provides for the recovery of \u201cdamages caused by the violation,\u201d N.C.G.S. \u00a7 113A-66(a)(3), and because punitive damages are designed to punish a party and are not awarded as compensation, they are not recoverable under the Act. See Allred v. Graves, 261 N.C. 31, 35, 134 S.E.2d 186, 190 (1964). Furthermore, had the legislature intended to permit punitive damages it could have specifically provided and it did not do so in this statute. Compare N.C.G.S. \u00a7 20-308.1(b) (1993) (specifically providing for the recovery of punitive damages for violation of statute).\nWith regard to the property damage claim, the defendants argue \u201c[t]he act of pushing a sign over which is in the right-of-way or easement one believes he is authorized to use does not amount to an act sufficient to justify the award of $5,000 in punitive damages.\u201d We disagree. Punitive damages are in the discretion of the fact finder and may be awarded \u201cwhere the wrong is done wilfully or under circumstances of rudeness, oppression or in a manner which evinces a reckless and wanton disregard of the litigant\u2019s rights.\u201d Van Leuven v. Akers Motor Lines, Inc., 261 N.C. 539, 546, 135 S.E.2d 640, 645 (1964); Hinson v. Dawson, 244 N.C. 23, 26, 92 S.E.2d 393, 396 (1956). The trial court found as fact that the defendants \u201cacted wilfully, wantonly and in disregard of plaintiffs\u2019 rights\u201d and there is ample competent evidence in this record to support that finding. Not only did the defendants push over the \u201cNo Trespassing\u201d sign but they did so after Anne Huberth refused to execute an easement and with knowledge that the plaintiffs did not want them to install an access road over the disputed area. Furthermore, the trial court did not err in ordering that the award be entered against the defendants \u201cjointly and severally.\u201d The defendants argue that Sally Dohner \u201cwould only be liable for Mr. Holly\u2019s acts, as his partner, if the act[s] occurred in the course of the partnership employment.\u201d There is no dispute that the defendants were partners in the development of the Holly tract and that the building of the access road was in furtherance of that development.\nin summary, we affirm the trial court\u2019s determination that no easement exists, affirm the award of nominal damages under the Act, affirm the award of punitive damages under the property damage claim and affirm the award of attorney fees and costs. We reverse the award of compensatory damages under the property damage claim. Because of the violation of Rule 28(j), in our discretion and pursuant to Rule 35 of the Appellate Rules, the cost of printing plaintiffs\u2019 brief is assessed personally to Marsh Smith, attorney for the plaintiffs. See State v. Patton, 119 N.C. App. 229, 230, 458 S.E.2d 230, 232 (1995); North Buncombe Assn. of Concerned, Citizens v. Rhodes, 100 N.C. App. 24, 33, 394 S.E.2d 462, 467-68, disc. rev. denied, 327 N.C. 484, 397 S.E.2d 215 (1990); N.C. R. App. P. 35(a) (cost of appeal to be assessed in the discretion of the appellate court). All other costs are to be divided between the parties, equally. N.C. R. App. P. 35(a).\nAffirmed in part, reversed in part.\nJudges WYNN and MARTIN, John C., concur.\n. We do not address, because it is not raised, the issue of whether plaintiffs are entitled to punitive damages even though we have held that they are not entitled to any compensatory damage award. See Title Ins. Co. of Minnesota v. Smith, Debnam, Hibbert and Pahl, 119 N.C. App. 608, 611, 459 S.E.2d 801, 804 (1995) (nominal damage award proper even though no showing of actual damage); but see id. (Greene, J. dissenting) (nominal damage award not proper unless showing of actual loss); Hawkins v. Hawkins, 331 N.C. 743, 417 S.E.2d 447 (1992) (award of nominal damages supports award of punitive damages).", "type": "majority", "author": "GREENE, Judge." } ], "attorneys": [ "Cunningham, DedmoncL, Petersen & Smith, by Marsh Smith, for plaintiff-appellees.", "Brown & Robbins, L.L.P., by P Wayne Robbins and Carol M. White, for defendant-appellants." ], "corrections": "", "head_matter": "HARRY HUBERTH, SANDY HUBERTH, and ANNE M. HUBERTH v. JERRY L. HOLLY and SALLY DOHNER\nNo. COA94-1162\n(Filed 3 October 1995)\n1. Easements \u00a7 59 (NCI4th)\u2014 finding that no easement existed proper\nThe trial court properly determined that no easement existed over the portion of plaintiffs property on which the \u201cOld Yadkin Road\u201d lay, since plaintiff\u2019s offer to sign an easement was conditioned on defendant\u2019s not removing any trees within the right of way, a condition which was not accepted; even if the language in plaintiff\u2019s 1964 deed was an offer of dedication of the \u201cOld Yadkin Road,\u201d there was no evidence that any public authority of Moore County accepted the dedication; plaintiffs were not parties in a declaratory judgment action establishing defendant\u2019s easement in the \u201cOld Yadkin Road\u201d across a neighboring landowner\u2019s property and so were not bound by that judgment; and there was no evidence that plaintiffs led defendants to believe that plaintiffs had granted them an easement.\nAm Jur 2d, Easements and Licenses \u00a7 17.\n2. Environmental Protection, Regulation, and Conservation \u00a7 124 (NCI4th)\u2014 violation of Sedimentation Pollution Control Act \u2014 nominal damages proper\nThe trial court properly awarded only nominal damages for violations of the Sedimentation Pollution Control Act where there was no evidence that the violations of the Act caused the loss of plaintiff\u2019s trees and groundcover plants.\nAm Jur 2d, Pollution Control \u00a7 552.\n3. Damages \u00a7 35 (NCI4th)\u2014 negligent damage to realty \u2014 destruction of trees and groundcover \u2014 measure of damages\nThe trial court erred by assessing damages on the basis of replacement cost of trees and groundcover in plaintiffs\u2019 action for negligent damage to real property where the injury to plaintiffs\u2019 property was \u201ccompleted,\u201d there was no evidence that the property was used for a purpose that was personal to plaintiffs, and the proper measure of damages was the difference in market value before and after the negligent injury.\nAm Jur 2d, Damages \u00a7\u00a7 401, 402.\nMeasure of damages for wrongful removal of earth, sand, or gravel from land. 1 ALR3d 801.\nMeasure of damages for injury to or destruction of shade or ornamental tree or shrub. 95 ALR3d 508.\n4. Damages \u00a7 66 (NCI4th)\u2014 property damage claim \u2014 award of punitive damages proper\nThough plaintiffs were not entitled to punitive damages under the Sedimentation Pollution Control Act, they were entitled to punitive damages on their property damage claim where there was ample evidence that defendants knew that plaintiffs did not want them to install an access road over the disputed area and defendants pushed over plaintiffs\u2019 \u201cNo Trespassing\u201d sign, thereby acting wilfully, wantonly, and in disregard of plaintiffs\u2019 rights.\nAm Jur 2d, Damages \u00a7 764.\nAppeal by defendants from judgment entered 9 June 1994 in Moore County Superior Court by Judge Howard R. Greeson, Jr. Heard in the Court of Appeals 22 August 1995.\nCunningham, DedmoncL, Petersen & Smith, by Marsh Smith, for plaintiff-appellees.\nBrown & Robbins, L.L.P., by P Wayne Robbins and Carol M. White, for defendant-appellants." }, "file_name": "0348-01", "first_page_order": 382, "last_page_order": 390 }