{ "id": 11198556, "name": "WENDELL A. FORDHAM, Plaintiff-Appellee v. A. V. EASON and wife, GRACE W. EASON; Defendants, and AMERICAN WOODLAND INDUSTRIES, INC., Defendant-Appellants", "name_abbreviation": "Fordham v. Eason", "decision_date": "1998-10-20", "docket_number": "No. COA98-57", "first_page": "226", "last_page": "230", "citations": [ { "type": "official", "cite": "131 N.C. App. 226" } ], "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": "N.C. Gen. Stat. \u00a7 1-487", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "opinion_index": 0 }, { "cite": "265 S.E.2d 397", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1980, "opinion_index": 0 }, { "cite": "299 N.C. 332", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8574949, 8574919, 8574897, 8574934, 8574908 ], "year": 1980, "opinion_index": 0, "case_paths": [ "/nc/299/0332-05", "/nc/299/0332-03", "/nc/299/0332-01", "/nc/299/0332-04", "/nc/299/0332-02" ] }, { "cite": "260 S.E.2d 130", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1979, "pin_cites": [ { "page": "133" } ], "opinion_index": 0 }, { "cite": "43 N.C. App. 655", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8554035 ], "year": 1979, "pin_cites": [ { "page": "659" } ], "opinion_index": 0, "case_paths": [ "/nc-app/43/0655-01" ] }, { "cite": "395 S.E.2d 85", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1990, "opinion_index": 0 }, { "cite": "327 N.C. 283", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2497384 ], "opinion_index": 0, "case_paths": [ "/nc/327/0283-01" ] }, { "cite": "376 S.E.2d 765", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1989, "pin_cites": [ { "page": "767" } ], "opinion_index": 0 }, { "cite": "93 N.C. App. 154", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8527922 ], "year": 1989, "pin_cites": [ { "page": "157" } ], "opinion_index": 0, "case_paths": [ "/nc-app/93/0154-01" ] }, { "cite": "492 S.E.2d 26", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1997, "opinion_index": 0 }, { "cite": "347 N.C. 138", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 551170, 551396, 551186, 551322, 551231 ], "year": 1997, "opinion_index": 0, "case_paths": [ "/nc/347/0138-04", "/nc/347/0138-02", "/nc/347/0138-05", "/nc/347/0138-01", "/nc/347/0138-03" ] }, { "cite": "484 S.E.2d 446", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1997, "pin_cites": [ { "page": "448" } ], "opinion_index": 0 }, { "cite": "126 N.C. App. 155", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11709102 ], "year": 1997, "pin_cites": [ { "page": "158" } ], "opinion_index": 0, "case_paths": [ "/nc-app/126/0155-01" ] }, { "cite": "187 S.E.2d 430", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1972, "pin_cites": [ { "page": "431", "parenthetical": "emphasis added" } ], "opinion_index": 0 }, { "cite": "14 N.C. App. 67", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8546876 ], "year": 1972, "pin_cites": [ { "page": "69", "parenthetical": "emphasis added" } ], "opinion_index": 0, "case_paths": [ "/nc-app/14/0067-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 1-539.1", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 1996, "opinion_index": 0 }, { "cite": "223 S.E.2d 311", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1976, "pin_cites": [ { "page": "313" } ], "opinion_index": 0 }, { "cite": "289 N.C. 531", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8571014 ], "year": 1976, "pin_cites": [ { "page": "535" } ], "opinion_index": 0, "case_paths": [ "/nc/289/0531-01" ] }, { "cite": "346 S.E.2d 139", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "opinion_index": 0 }, { "cite": "317 N.C. 334", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4780326, 4777709, 4778478, 4779983, 4776954 ], "year": 1986, "opinion_index": 0, "case_paths": [ "/nc/317/0334-03", "/nc/317/0334-02", "/nc/317/0334-05", "/nc/317/0334-01", "/nc/317/0334-04" ] }, { "cite": "341 S.E.2d 588", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "pin_cites": [ { "page": "598" } ], "opinion_index": 0 }, { "cite": "80 N.C. App. 1", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8521697 ], "year": 1986, "pin_cites": [ { "page": "18" } ], "opinion_index": 0, "case_paths": [ "/nc-app/80/0001-01" ] }, { "cite": "224 S.E.2d 580", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1976, "pin_cites": [ { "page": "588" } ], "opinion_index": 0 }, { "cite": "289 N.C. 620", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8572567 ], "year": 1976, "pin_cites": [ { "page": "631" } ], "opinion_index": 0, "case_paths": [ "/nc/289/0620-01" ] } ], "analysis": { "cardinality": 539, "char_count": 10827, "ocr_confidence": 0.701, "pagerank": { "raw": 2.2968813210473765e-07, "percentile": 0.7869261875885428 }, "sha256": "7fa5d72cf58feebf65b26dc031d82827ddfe9b9fe390bcca1d10d79442fa6048", "simhash": "1:4019b468fb6e0fa4", "word_count": 1756 }, "last_updated": "2023-07-14T20:31:28.584435+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges MARTIN, John C., and TIMMONS-GOODSON concur." ], "parties": [ "WENDELL A. FORDHAM, Plaintiff-Appellee v. A. V. EASON and wife, GRACE W. EASON; Defendants, and AMERICAN WOODLAND INDUSTRIES, INC., Defendant-Appellants" ], "opinions": [ { "text": "HORTON, Judge.\nWoodland asserts error to the summary dismissal of its counterclaims for: interference with contractual relations; unfair and deceptive trade practices; wrongful cutting of timber; trespass; and abuse of process.\nThe trial court granted summary judgment for plaintiff on all of these claims. Therefore, we must examine each of defendant\u2019s claims to determine whether a material question of fact exists for one or more of them.\nI. Interference with Contractual Relations and Unfair and Deceptive Trade Practices\nBefore we address the merits of this case, we note that appellate review is confined to those exceptions which pertain to the arguments presented. Crockett v. First Fed. Sav. & Loan Ass\u2019n of Charlotte, 289 N.C. 620, 631, 224 S.E.2d 580, 588 (1976). To obtain appellate review, a question raised by an assignment of error must be presented and argued in the brief. In re Appeal from Environmental Management Comm., 80 N.C. App. 1, 18, 341 S.E.2d 588, 598, disc. review denied, 317 N.C. 334, 346 S.E.2d 139 (1986). Questions raised by assignments of error which are not presented in a party\u2019s brief are deemed abandoned. State v. Wilson, 289 N.C. 531, 535, 223 S.E.2d 311, 313 (1976). Defendant Woodland\u2019s brief failed to address the issues of interference with contractual relations and unfair and deceptive trade practices. Therefore, these issues are abandoned.\nII. Wrongful Cutting of Timber and Trespass\nThe torts of wrongful cutting of timber and trespass are considered together since their purpose is to protect the rightful owner of real property. N.C. Gen. Stat. \u00a7 1-539.1 (1996) provides that\n[a]ny person, firm or corporation not being the bona fide owner thereof or agent of the owner who shall without the consent and permission of the bona fide owner enter upon the land of another and injure, cut or remove any valuable wood, timber, shrub or tree therefrom, shall be liable to the owner of said land for double the value of such wood, timber, shrubs or trees so injured, cut or removed.\n(Emphasis added).\nIn no sense was Woodland the \u201cowner\u201d of the lands in question, although Woodland was allowed to enter upon the Easons\u2019 lands to cut timber. \u201cIn order to sustain an action for permanent damages to the freehold, or to the ownership interest, such as an action for unlawful cutting of timber, plaintiff must allege and show that he is the owner of the land from which the timber was cut.\u201d Woodard v. Marshall, 14 N.C. App. 67, 69, 187 S.E.2d 430, 431 (1972) (emphasis added). Woodland cannot show that it was the owner of the land. Therefore, the action for wrongful cutting of timber is dismissed.\nFurthermore, a claim for trespass requires: (1) possession of the property by plaintiff when the alleged trespass was committed; (2) an unauthorized entry by defendant; and (3) damage to plaintiff. Pine Knoll Ass\u2019n v. Cardon, 126 N.C. App. 155, 158, 484 S.E.2d 446, 448, disc. review denied, 347 N.C. 138, 492 S.E.2d 26 (1997). Since Woodland cannot show that it was the owner of the land, it cannot maintain a cause of action for trespass. Thus, this cause of action is dismissed as well.\nIII. Abuse of Process\nFinally, Woodland claims the trial court erred when it dismissed the claim for abuse of process. Abuse of process requires: (1) an ulterior motive; and (2) an act in the use of the process that is not proper in the regular prosecution of the proceeding. Edwards v. Advo Systems, Inc., 93 N.C. App. 154, 157, 376 S.E.2d 765, 767 (1989), overruled on other grounds, Johnson v. Ruark Obstetrics, 327 N.C. 283,\n395 S.E.2d 85 (1990). \u201c[T]he gravamen of a cause of action for abuse of process is the improper use of the process after it has been issued.\u201d Petrou v. Hale, 43 N.C. App. 655, 659, 260 S.E.2d 130, 133 (1979), disc. review denied, 299 N.C. 332, 265 S.E.2d 397 (1980). \u201cAn ulterior motive alone is not sufficient\u201d to sustain an abuse of process claim. Id.\nIn the instant case, Fordham obtained a preliminary injunction in order to prevent Woodland from continuing its removal of timber from the Easons\u2019 land. Fordham argued to the trial court that the status quo must be maintained until the case could be heard on the merits. Further, Fordham presented the trial court with a copy of N.C. Gen. Stat. \u00a7 1-487, which provides that \u201cno order shall be made pending such action, permitting either party to cut said timber trees, except by consent, until the title to said land or timber trees is finally determined in the action.\u201d (Emphasis added).\nHowever, Woodland claims Fordham abused the legal process by obtaining an injunction merely to allow Fordham to cut the timber while Woodland was restrained by a court order. Woodland presented evidence that once Fordham obtained the preliminary injunction, Fordham thereafter entered upon the Easons\u2019 lands to cut and remove timber worth over $100,000.00. In addition, Woodland presented evidence that Fordham admitted he entered the Easons\u2019 property and cut and removed timber and pulpwood after the injunction was issued.\nA review of this evidence shows that Woodland has raised a genuine issue of material fact concerning Fordham\u2019s motives in obtaining the injunction and Fordham\u2019s actions thereafter. Therefore, summary judgment was improper on the abuse of process claim.\nIn conclusion, summary judgment for interference with contractual rights and for unfair and deceptive trade practices is affirmed; summary judgment for the actions of wrongful cutting of timber and for trespass is affirmed; and summary judgment for the abuse of process claim is reversed.\nAffirmed in part and reversed in part.\nJudges MARTIN, John C., and TIMMONS-GOODSON concur.", "type": "majority", "author": "HORTON, Judge." } ], "attorneys": [ "Narron, O\u2019Hale and Whittington, P.A., by Jacquelyn L. Lee, 0. Hampton Whittington, Jr., and James W. Narron, for plaintiff appellee.", "Thomas Edward Hodges, for American Woodland Industries, Inc., defendant appellant." ], "corrections": "", "head_matter": "WENDELL A. FORDHAM, Plaintiff-Appellee v. A. V. EASON and wife, GRACE W. EASON; Defendants, and AMERICAN WOODLAND INDUSTRIES, INC., Defendant-Appellants\nNo. COA98-57\n(Filed 20 October 1998)\n1. Appeal and Error\u2014 brief \u2014 issues not addressed\u2014 abandoned\nIssues not addressed in defendant\u2019s brief were abandoned.\n2. Trespass\u2014 wrongful cutting of timber \u2014 no ownership of land by plaintiff\nCounterclaims for the wrongful cutting of timber and trespass arising from multiple contracts for the same timber were dismissed where appellant timber company could not show that it was the owner of the lands in question.\n3. Torts, Other\u2014 abuse of process \u2014 summary judgment\u2014 improperly granted\nSummary judgment was improperly granted on an abuse of process claim in an action arising from multiple contracts for the same timber where one timber company (Woodland) raised a genuine issue of material fact concerning the other company\u2019s (Fordham) motives in obtaining an injunction to stop Woodland\u2019s removal of timber in that Fordham cut and removed timber after obtaining the injunction.\nAppeal by defendant American Woodland Industries, Inc., from summary judgment entered 9 October 1997 by Judge Knox V. Jenkins, Jr., in Johnston County Superior Court. Heard in the Court of Appeals 23 September 1998.\nAt all relevant times, defendants A. V. Eason and wife, Grace W. Eason (the Easons), owned real property in Johnston County, North Carolina. The timber on the Easons\u2019 property was extensively damaged by Hurricane Fran. Several timber buyers were interested in purchasing the Easons\u2019 timber.\nIn the summer of 1996, plaintiff Wendell A. Fordham, the owner of Fordham Timber Company, Inc., talked with defendant A. V. Eason about the purchase of the Easons\u2019 timber. On 11 November 1996, defendants signed a paper entitled \u201cTimber Cutting Contract\u201d (Contract). The Contract allowed plaintiff to \u201center, cut and remove . . . forest products [all timber and pulpwood]\u201d from all the lands of A. V. Eason in Johnston County until 1 June 1997.\nThe Contract provided the unit price plaintiff would pay for each type of forest product cut and removed. The Contract recites that the Easons made the agreement \u201cfor and in consideration of the payment made or to be made by [plaintiff].\u201d The Contract was not recorded in the office of the Register of Deeds.\nOn 7 February 1997, appellant American Woodland Industries, Inc. (Woodland), also entered into a contract with the Easons for the purchase of the same timber. It was entitled \u201cTimber Purchase and Sales Agreement\u201d (Agreement), and provided that the Easons were selling to Woodland the \u201ctrees, tops or laps\u201d on their property, and granted Woodland until 7 February 1999 to \u201center, cut, and harvest and remove the said timber.\u201d Woodland agreed to pay a deposit of $30,000.00 to the Easons to be applied against the stumpage amounts, with additional funds to be paid when the deposit was depleted.\nThe Agreement then provided the unit prices for the various types of forest products to be cut and removed. The Easons signed the Agreement, their signatures were notarized, and the document was recorded in the office of the Johnston County Register of Deeds. The Agreement was not signed by a representative of Woodland. However, the name and address of Woodland is printed at the end of the document.\nA. V. Eason testified that he entered into the second timber agreement because he \u201cdidn\u2019t get no results\u201d from plaintiff. When A. V. Eason signed the Agreement with Woodland, plaintiff had not cut or removed any forest products from the Easons\u2019 land. Woodland was aware that the Easons had entered into a Contract with plaintiff, but learned at the office of the Register of Deeds that the Contract had not been recorded.\nAfter the execution of the Agreement and payment of the $30,000.00 deposit, Woodland entered onto the Easons\u2019 land and began to cut timber in February 1997. On 12 February 1997,-plaintiff filed an application and order extending the time to file a complaint, and secured a temporary restraining order preventing Woodland from cutting or removing any timber from the Easons\u2019 property until the matter could be heard by the trial court.\nOn 14 February 1997, plaintiff filed a complaint asking that a preliminary injunction be granted against Woodland to prevent further cutting of the timber until a final determination of the matter. On 17 February 1997, the trial court granted plaintiffs motion for a preliminary injunction. Several days later, plaintiff entered the Easons\u2019 lands and began to cut and remove timber.\nWoodland filed an answer and counterclaim, alleging wrongful timber cutting and abuse of process. Both Woodland and plaintiff moved for summary judgment. Defendants Eason and plaintiff voluntarily dismissed their respective claims and counterclaims against each other. The trial court granted the motions for summary judgment for both plaintiff and Woodland. Woodland appeals.\nNarron, O\u2019Hale and Whittington, P.A., by Jacquelyn L. Lee, 0. Hampton Whittington, Jr., and James W. Narron, for plaintiff appellee.\nThomas Edward Hodges, for American Woodland Industries, Inc., defendant appellant." }, "file_name": "0226-01", "first_page_order": 260, "last_page_order": 264 }