{ "id": 11238427, "name": "EVERETTE B. BARNARD and wife, DIANE S. BARNARD, Plaintiffs v. BOBBY ROWLAND, d/b/a BOBBY ROWLAND TIMBER & LOGGING, Defendant & Third-Party Plaintiff v. JAMES M. FIFE and wife, MICHELLE H. FIFE, Third-Party Defendants", "name_abbreviation": "Barnard v. Rowland", "decision_date": "1999-03-02", "docket_number": "No. COA97-1411", "first_page": "416", "last_page": "430", "citations": [ { "type": "official", "cite": "132 N.C. App. 416" } ], "court": { "name_abbreviation": "N.C. Ct. 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FIFE, Third-Party Defendants" ], "opinions": [ { "text": "JOHN, Judge.\nDefendant and third-party plaintiff Bobby Rowland (Rowland) appeals the trial court\u2019s denial of his motions pursuant to N.C.G.S. \u00a7 1A-1, Rule 50(b) (1990) for directed verdict and for judgment notwithstanding the verdict (JNOV). Rowland also contends the court erred by: (1) granting the directed verdict motion of plaintiffs Everette and Diane Barnard (the Barnards) on Rowland\u2019s claim of tor-tious interference of contract; and (2) failing to instruct the jury properly on the doctrines of impossibility of performance and prevention, and contribution. For the reasons discussed herein, we affirm in part, vacate in part, and remand with further instructions.\nPertinent facts and procedural history include the following: In early March 1995, Rowland entered into an oral agreement with third-party defendants James and Michelle Fife (the Fifes) for cutting and removal of timber located on the Fifes\u2019 property in Rowan County. Under the agreement, Rowland paid the Fifes $3,200.00 for a quantity of timber cut from their property, the exact amount of timber logged being disputed by the parties.\nThe Fifes, whose property adjoined that of the Barnards, did not designate to Rowland the precise boundaries of their tract. Regarding the Fife/Barnard boundary, however, Mr. Fife informed Rowland that a barbed and electric wire fence approximated the property line, and that if Rowland remained five to ten feet inside the fence, he \u201cwould definitely be all right.\u201d\nRowland commenced logging 14 March 1995. The next day, Mr. Barnard reported to the Rowan County Sheriff\u2019s Department (Sheriff\u2019s Department) that Rowland had cut or was about to cut three trees on the Barnard property. Although Rowland insisted he had purchased all trees on the Fifes\u2019 side of the fence, the fence was \u201cbowed\u201d and did not necessarily conform to the boundary between the Barnard property and that owned by the Fifes. Notwithstanding Mr. Barnard\u2019s objections, Rowland felled the three trees.\nOn 16 March 1995, Mr. Fife requested assistance from the Sheriff\u2019s Department in removing Rowland from the Fife property. According to Mr. Fife, Rowland\u2019s timbering activities were injuring neighboring properties and his conduct was not in conformance with the verbal agreement. On 18 March 1995, Rowland was escorted from the Fife property, whereupon Mr. Fife blocked the entrance so as to prevent Rowland\u2019s return. In all, Rowland felled approximately sixteen trees located completely or partially on the Barnard property, including one approximately fifteen feet from the Fife/Barnard boundary.\nThe Barnards instituted the instant action 24 October 1995, seeking to recover from Rowland the value of the cut timber, the diminished value of their property, and punitive damages. Rowland answered, generally denying the allegations. He also counterclaimed against the Barnards, alleging wrongful interference with the timber contract, and cross-claimed against the Fifes, claiming they materially breached the agreement by \u201cmaking it impossible for [Rowland] to finish the contract.\u201d Further, Rowland asserted a claim for contribution against the Fifes in the event he were to be found liable to the Barnards. The Fifes subsequently counterclaimed against Rowland, alleging breach of the logging agreement.\nAt trial, Rowland\u2019s motions for directed verdict at the conclusion of the Barnards\u2019 evidence and at the close of all the evidence were denied. However, the Barnards\u2019 motion for directed verdict on Rowland\u2019s counterclaim for tortious interference of contract was allowed. The court denied Rowland\u2019s requested jury instruction on the doctrine of impossibility of performance and prevention. The court also rejected the Fifes\u2019 motion for directed verdict on Rowland\u2019s third-party claim for contribution.\nFollowing the jury\u2019s award of $1,244.00 to the Barnards as the value of the cut timber and $600.00 in punitive damages, Rowland moved for JNOV. On 17 February 1997, the trial court entered its ruling, declaring in pertinent part:\n1) That the amount awarded to plaintiffs for damage to their wood, timber, shrubs or trees be doubled, pursuant to G.S. \u00a7 1-539.1.\n2) That the plaintiffs have and recover judgment against the defendant in the principle amount of $2,488.00 for damages to trees, etc. and $600.00 for punitive damages.\n4) That the defendant\u2019s motion to set aside the verdict as being against the greater weight of evidence is denied.\nDefendant timely appealed 21 February 1997.\nI.\nAs a preliminary matter, we note that each brief submitted herein violates N.C.R. App. P. 26(g) (Rule 26(g)). Rule 26(g) requires documents filed with this Court to appear in \u201cat least 11 point\u201d type, the term \u201cpoint\u201d referring to the height of a letter, extending from the highest part of any letter to the lowest part. Id.; Lewis v. Craven Regional Medical Center, 122 N.C. App. 143, 147, 468 S.E.2d 269, 273 (1996). Accordingly, a brief may not contain more than sixty-five (65) characters and spaces per line, nor more than twenty-seven (27) lines of double-spaced text per page. See Lewis, 122 N.C. App. at 147, 468 S.E.2d at 273. Although Rule 26(g) does not speak in terms of characters per inch (cpi), a standard not equivalent to point size, \u201c[t]en characters per inch is ... the standard we will apply to the briefs filed with this Court.\u201d Id.\nRule 26(g) may also be met by a brief presented in the\nsame type-setting as used by this Court in its slip opinions\u2014 Courier 10 cpi \u2014 which insures no more than sixty-five (65) characters per line and twenty-seven (27) lines per page. Courier 10 cpi may be achieved in computer and word processing technology by utilizing no smaller than size twelve (12) Courier or Courier New font.\nHowell v. Morton, 131 N.C. App. 626, 628, 508 S.E.2d 804, - (1998).\nIn the case sub judice, all briefs presented to this Court contain in excess of ninety-one (91) characters per line and thus violate Rule 26(g). It should be unnecessary to reiterate that our appellate rules are mandatory, see Wiseman v. Wiseman, 68 N.C. App. 252, 255, 314 S.E.2d 566, 568 (1984), so as to \u201cprevent unfair advantage to any litigant,\u201d Lewis, 122 N.C. App. at 147, 468 S.E.2d at 273, and that violation thereof subject an appeal to dismissal. See Wiseman, 68 N.C. App. at 255, 314 S.E.2d at 566. While emphasizing that the ever-increasing volume of materials filed with this Court require uniformity and compliance with the Rules so as to facilitate our disposition of matters before us, we nonetheless elect in this instance to exercise our discretion under N.C.R. App. R 2 and consider the instant appeal on its merits. However, double costs are assessed, see N.C.R. App. P. 34(b)(2) (court of the appellate division may impose sanction of \u201cdouble costs\u201d), the first set to be shared equally among the parties, see N.C.R. App. P. 35(a) (if judgment is \u201cmodified in any way, costs shall be allowed as directed by the court\u201d), the second to be paid in equal shares by counsel for the parties.\nII.\nA.\nRowland first argues the trial court erred in denying his motions for directed verdict and JNOV on the issues of trespass and punitive damages and in denying his JNOV motion on the issue of breach of contract. We conclude the latter assignment of error has been waived and that the former is unfounded.\nThe question presented by a defendant\u2019s directed verdict motion is whether the evidence, considered in the light most favorable to plaintiff, is sufficient to take the case to the jury and to support a verdict for plaintiff. See Henderson v. Traditional Log Homes, 70 N.C. App. 303, 306, 319 S.E.2d 290, 292, disc. review denied, 312 N.C. 622, 323 S.E.2d 923 (1984). If there is more than a scintilla of evidence \u201cto support plaintiff\u2019s prima facie case in all its constituent elements,\u201d the motion for directed verdict should be denied. Douglas v. Doub, 95 N.C. App. 505, 511, 383 S.E.2d 423, 426 (1989). Appellate review of a directed verdict is limited to those grounds asserted by the movant before the trial court. See Southern Bell Telephone and Telegraph Co. v. West, 100 N.C. App. 668, 670, 397 S.E.2d 765, 766 (1990), aff\u2019d, 328 N.C. 566, 402 S.E.2d 409 (1991).\nA JNOV motion is \u201cessentially a renewal of a motion for directed verdict,\u201d Smith v. Price, 74 N.C. App. 413, 418, 328 S.E.2d 810, 815 (1985), aff\u2019d in part, rev\u2019d in part on other grounds, 315 N.C. 523, 340 S.E.2d 408 (1986), and thus must be preceded by a motion for directed verdict at the close of all evidence. See Whitaker v. Earnhardt, 289 N.C. 260, 264, 221 S.E.2d 316, 319 (1976). On appeal, we apply the same standard of review as that for a directed verdict. See Northern Nat\u2019l Life Ins. Co. v. Miller Machine Co., 311 N.C. 62, 69, 316 S.E.2d 256, 261 (1984). Notably, \u201c[t]he movant cannot assert grounds [for the JNOV] not included in [his] motion for directed verdict.\u201d Love v. Pressley, 34 N.C. App. 503, 509, 239 S.E.2d 574, 580, cert. denied, 294 N.C. 441, 241 S.E.2d 843 (1978).\nIn the case sub judice, the sole ground asserted for Rowland\u2019s directed verdict motion was insufficiency of the evidence supporting the Barnards\u2019 claims of trespass and punitive damages. Moreover, Rowland did not contest the sufficiency of the evidence regarding the Fifes\u2019 breach of contract counterclaim. As such, appellate review of the trial court\u2019s denial of defendant\u2019s JNOV motion addressed to that issue has been waived. See Lee v. Bir, 116 N.C. App. 584, 587, 449 S.E.2d 34, 37 (1994), cert. denied, 340 N.C. 113, 454 S.E.2d 652 (1995). We therefore consider only whether the trial court properly determined \u201cmore than a scintilla of evidence\u201d sustained presentation of the issues of trespass and punitive damages to the jury. See Snead v. Holloman, 101 N.C. App. 462, 464, 400 S.E.2d 91, 92 (1991).\nThe elements of a claim of trespass are:\n1) [t]hat the plaintiff was either actually or constructively in possession [or was the owner of described lands];\n2) [t]hat the defendant made an unauthorized, and therefore an unlawful, entry [upon said lands]; [and]\n3) [t]hat the plaintiff suffered damage by reason of the matter alleged as an invasion of his rights of possession.\nMatthews v. Forrest, 235 N.C. 281, 283, 69 S.E.2d 553, 555 (1952).\nIn the case sub judice, the parties stipulated the Barnards owned the property subject to the alleged trespass. Further, viewed in the light most favorable to plaintiffs, testimony at trial indicated Rowland entered upon the Barnards\u2019 land without authorization, proceeded to cut timber, and that the Barnards were damaged thereby. As Rowland testified:\nQ: You didn\u2019t buy any of Mr. Barnard\u2019s timber, did you?\nA: No, sir.\nQ: And you had no right at all to cut any of Mr. Barnard\u2019s timber\u2014\nA: No, sir.\nQ: \u2014did you?\nA: Huh-uh (no).\nQ: Who sawed down those three trees?\nA: I had four or five [employees] cutting trees. I don\u2019t know which one cut them down.\nQ: All right. But you knew they were cut?\nA: Oh, yeah.\nIn addition, Mr. Barnard stated:\nQ: All right. And when he got to your house, what did you do?\nA: ... I showed [Rowland], you know, how my fence line right at that area was. I said, \u201cYou\u2019re not going to cut these trees,\u201d He said, \u201cOh yeah,\u201d he said, \u201cI\u2019m going to cut them trees,\u201d I said, \u201cNo, you ain\u2019t.\u201d I said, \u201cThey\u2019re not [Fife\u2019s]. They\u2019re mine.\u201d\nQ: And this damage is on your side of the fence?\nA: Yes, sir.\nQ: How did he get to this area?\nA: He came through my gate.\nQ: Came on your property?\nA: Yes.\nThe foregoing was corroborated by Richard Brandon, a registered surveyor, who testified in relevant part:\nQ: Okay. And all the trees that are shown on this plat, other than the one that does not have a number, are either on the line or on Mr. Barnard\u2019s property?\nA. Correct.\nQ: Did Mr. \u2014 ? In looking at these trees and all, did Mr. Barnard identify them to you as trees that had been cut by Mr. Rowland?\nA: Yes, sir.\nTaking all inferences in favor of the Barnards, more than a scintilla of evidence supported each element of plaintiff\u2019s trespass claim, see Snead, 101 N.C. App. at 464, 400 S.E.2d at 92, and the trial court did not err in submitting this issue to the jury or by denying defendant Rowland\u2019s JNOV motion.\nB.\nRowland next maintains the trial court erred in submitting the issue of punitive damages to the jury. At trial, Rowland argued that submission of the issue would allow plaintiff a \u201cdouble recovery.\u201d See West, 100 N.C. App. at 670, 397 S.E.2d at 766 (appellate review limited to grounds asserted by movant to trial court). This contention has merit.\nTwo alternative measures of damages are available in a suit claiming unlawful cutting of timber:\nOne gives the landowner the difference in the value of his property immediately before and immediately after the cutting. The other gives plaintiff the value of the timber itself. This latter value is then doubled by reason of N.C.G.S. l-539.1(a) which allows plaintiff to recover double the value of timber cut or removed.\nBritt v. Georgia-Pacific Corp., 46 N.C. App. 107, 109, 264 S.E.2d 395, 398 (1980) (citations omitted). One may not \u201crecover both . . . statutory damages and damages for the diminution in value of . . . property.\u201d Id. at 110, 264 S.E.2d at 398. Rather, a party makes an election between the remedies by \u201cproceed[ing] upon [one or the other] theory at trial.\u201d Id.\nN.C.G.S. \u00a7 1-539.1(a) (1995) provides in relevant part:\n(a) Any 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.\nG.S. \u00a7 1-539.1(a). G.S. \u00a7 1-539.1 pointedly authorizes doubling timber value, but not doubling loss in property value. See Britt, 46 N.C. App. at 110, 264 S.E.2d at 398 (1980); see also Dan B. Dobbs, Trespass to Land in North Carolina Part II: Remedies for Trespass, 47 N.C.L. Rev. 334, 337 (1969).\nStatutes in derogation of the common law or statutes imposing a penalty must be strictly construed. See Simmons v. Wilder, 6 N.C. App. 179, 181, 169 S.E.2d 480, 481 (1969). Accordingly,\neverything [must] be excluded from the operation of [G.S. \u00a7 1-539.1] which does not come within the scope of the language used, taking the words in their natural and ordinary meaning.\nJones v. Georgia-Pacific Corp., 15 N.C. App. 515, 518, 190 S.E.2d 422, 424 (1972). For example, parties proceeding under G.S. \u00a7 1-539.1 may not recover under the common law remedy of \u201ctrover to recover the value of the goods\u201d in their changed condition. Id. at 518, 190 S.E.2d at 424-25.\nSimilarly, in the instant case, G.S. \u00a7 1-539.1 may not afford the common law remedy of punitive damages since it is itself punitive. See 1945 N.C. Sess. Laws 837 (HB 371, later enacted as G.S. \u00a7 1-539.1, entitled \u201cAn Act Providing for Double and Punitive Damages in Actions for Unlawful Injury, Cutting or Removal of Timber\u201d) (emphasis added); Woodard v. Marshall, 14 N.C. App. 67, 69, 187 S.E.2d 430, 432 (1972) (describing G.S. \u00a7 1-539.1 as imposing penalty), and 22 Am. Jur. 2d Damages \u00a7 814 (1988) (statutes providing for double damages and regarded \u201cas a penalty . . . subject the wrongdoer to an extraordinary liability by way of punishment\u201d). Consequently, a plaintiff may not collect punitive damages under common law, and recover statutory double or \u201cpunitive\u201d damages under G.S. \u00a7 l-539.1(a) because doing so would amount to double recovery. See Britt, 46 N.C. App. at 110, 264 S.E.2d at 398 (plaintiff cannot recover both common law and statutorily provided remedies), accord Jones, 15 N.C. App. at 518, 190 S.E.2d at 424; cf. Johnson v. Tyler, 277 N.W.2d 617, 619 (1979) (both punitive and statutory treble damages may not be recovered under Iowa statute prohibiting unlawful cutting of timber since to do so would constitute double recovery).\nTherefore, a plaintiff suing for unlawful cutting or removal of timber may recover either 1) the difference in value of the property immediately before and immediately after the cutting, in addition to punitive damages if appropriate under the facts, or 2) the value of the timber itself, doubled by operation of G.S. \u00a7 l-539.1(a). A plaintiff may not recover both.\nIn the case sub judice, the Barnards sought 1) damages for the value of timber cut by Rowland, and 2) the \u201cdamage to [plaintiffs\u2019] land,\u201d i.e., diminution in value. At trial, however, the Barnards abandoned the latter claim, having introduced \u201cno evidence\u201d establishing \u201cthe value of the property before and after\u201d the alleged trespass of Rowland. The Barnards thus elected to seek recovery under G.S. \u00a7 1-539.1 and relinquished any claim for punitive damages attendant to the common law claim. The trial court therefore erred in submitting the issue of punitive damages to the jury, and the jury award of such damages in the amount of $600.00 must be reversed and vacated.\nC.\nRowland next contends the trial court erred \u201cin allowing [the Barnards\u2019] motion for directed verdict on defendant\u2019s counterclaim of wrongful interference of contract.\u201d We disagree.\nUpon a plaintiffs motion for directed verdict challenging a defendant\u2019s counterclaim, the test is whether all the evidence tending to support defendant\u2019s counterclaim, taken as true and considered in the light most favorable to the defendant, is sufficient to submit that claim to the jury. See Sloan v. Wells, 37 N.C. App. 177, 179-80, 245 S.E.2d 529, 531 (1978), rev\u2019d, on other grounds, 296 N.C. 570, 251 S.E.2d 449 (1979).\nThe elements of tortious interference of contract are:\n(1) a valid contract between the plaintiff and a third person which confers upon the plaintiff a contractual right against a third person; (2) defendant knows of the contract; (3) the defendant intentionally induces the third person not to perform the contract; (4) and in doing so acts without justification; (5) resulting in actual damage to the plaintiff.\nEmbree Construction Group v. Rafcor, Inc., 330 N.C. 487, 498, 411 S.E.2d 916, 924 (1992).\nSignificantly, in granting the Barnards\u2019 directed verdict motion, the trial court noted the absence of proof regarding the fourth element of Rowland\u2019s claim, stating:\nthe key element here that this motion directs the Court toward is the fourth of the elements needed to be proved \u2014 acted without justification. I think there is not any evidence to take to the jury that he acted without justification at all.\nWhether an actor\u2019s conduct is justified depends upon:.\nthe circumstances surrounding the interference, the actor\u2019s motive or conduct, the interests sought to be advanced, the social interest in protecting the freedom of action of the actor and the contractual interests of the other party.\nPeoples Security Life Ins. Co. v. Hooks, 322 N.C. 216, 221, 367 S.E.2d 647, 650 (1988). Further, justification is lacking if \u201c \u2018the act is done other than as a reasonable and bona fide attempt to protect the interest of the [accused] which is involved.\u2019 \u201d Id. at 220, 367 S.E.2d at 650 (quoting Smith v. Ford Motor Co., 289 N.C. 71, 91, 221 S.E.2d 282, 294 (1976)). However, if a particular act is done for a \u201clegitimate . . . purpose, [the act] is privileged.\u201d Id. at 221, 221 S.E.2d at 650.\nSuffice it to state that careful review of the record fails to reveal the requisite scintilla of evidence that Mr. Barnard acted without justification in opposing the logging operations of Rowland. See Snead, 101 N.C. App. at 110, 400 S.E.2d at 92. Rather, as owner of adjoining real estate, Mr. Barnard\u2019s interest in protecting his property from unauthorized logging activities without doubt was \u201creasonable and bona fide.\u201d See Smith, 289 N.C. at 91, 221 S.E.2d at 294. As the evidence failed regarding a \u201cconstituent element[]\u201d of Rowland\u2019s counterclaim, see Douglas, 95 N.C. App. at 511, 383 S.E.2d at 426, the trial court did not err in granting the Barnards\u2019 motion for directed verdict thereon.\nD.\nFinally, Rowland asserts the court erred \u201cby failing to instruct the jury on the doctrine of impossibility of performance and prevention,\u201d and by failing to provide specific instruction on \u201cthe doctrine of contribution.\u201d We do not agree.\nUpon request for a special instruction \u201c \u2018correct in law and supported by the evidence, the trial court must give the requested instruction, at least in substance.\u2019 \u201d State v. Thompson, 118 N.C. App. 33, 36, 454 S.E.2d 271, 273 (quoting State v. Tidwell, 112 N.C. App. 770, 773, 436 S.E.2d 922, 924 (1993)), disc. review denied, 340 N.C. 262, 456 S.E.2d 837 (1995). Further, \u201c[i]t is the duty of the trial judge without any special requests to instruct the jury on the law as it applies to the substantive features of the case arising on the evidence.\u201d Millis Construction Co. v. Fairfield Sapphire Valley, 86 N.C. App. 506, 509, 358 S.E.2d 566, 568 (1987).\nErroneous or incomplete instructions notwithstanding, the \u201cparty asserting error must show from the record not only that the trial court committed error, but that the aggrieved party was prejudiced as a result.\u201d Lawing v. Lawing, 81 N.C. App. 159, 162, 344 S.E.2d 100, 104 (1986); see also N.C.G.S. \u00a7 1A-1, Rule 61 (1990) (Rule 61). Moreover,\n[w]hen the jury returns answers to other issues which establish the rights of the parties irrespective of the answer to the questioned issue, or the rights of the parties are not dependent upon the answer to the issue returned by the jury, any error in the instructions upon such issue is harmless.\nMode v. Mode, 8 N.C. App. 209, 213, 174 S.E.2d 30, 33-34 (1970).\nThe trial court herein submitted the following pertinent issues to the jury:\nIssue One\n(b) ... was the trespass done purposefully or wilfully?\nAnswer: Yes\nIssue Four\n(a) Was the defendant, Bobby Rowland, the agent of the third-party defendant, James Fife, at the time of the trespass by Rowland on the property owned by Barnard?\nAnswer: No\nIssue Five\n(a) Did the defendant, Bobby Rowland, breach his contract with the third-party defendants, James and Michelle Fife?\nAnswer: Yes\nIssue Six\n(a) Did the third-party defendants, James and Michelle Fife, breach their contract with the defendant, Bobby Rowland?\nAnswer: No\nAssuming arguendo the court erred by not instructing the jury upon impossibility of performance and prevention, and contribution, we nonetheless hold Rowland has not demonstrated he has been prejudiced thereby.\nFor instance, in asserting that the Fifes breached the timber contract, Rowland alleged in his third-party claim:\n[t]he third-party defendants, without justification or excuse, wrongfully and materially breached the contract with the third-party plaintiffs by making impossible for the third-party plaintiff to finish the contract, by, but not limited to the following:\nC. The third-party defendant James M. Fife demanded that the third-party plaintiff, the defendant herein, leave the premises prior to the third-party plaintiff removing all of the timber that had been bargained for pursuant to a threat of violence against the third-party plaintiff.\nD. The third-party defendant, James M. Fife prevented the defendant from sowing grass on both sides of the creek.\n(Emphasis added).\nIn assessing and denying Rowland\u2019s claim that the Fifes breached the timber contract, the jury necessarily considered whether it was impossible for defendant to have performed the contract or whether the Fifes prevented him from doing so. Defendant has not shown that \u201ca different result would likely have ensued had the [alleged] error not occurred,\u201d Warren v. City of Asheville, 74 N.C. App. 402, 409, 328 S.E.2d 859, 864, disc. review denied, 314 N.C. 336, 333 S.E.2d 496 (1985), i.e., had the jury been separately instructed on the doctrine of impossibility of performance and prevention. We therefore hold that any such error was harmless. See Rule 61.\nSimilarly, the jury\u2019s findings \u201cestablish[ed] the rights of the parties irrespective of the answer to the question[]\u201d of contribution, Mode, 8 N.C. App. at 213, 174 S.E.2d at 33, and any error by the trial court in failing to charge the jury on this issue was also harmless. See id. Notably, the jury determined Rowland trespassed upon the Barnards\u2019 property \u201cpurposefully\u201d and that he was not acting on behalf of or as \u201cthe agent of the third-party defendant [Fifes].\u201d Rowland\u2019s trespass was thus not \u201ca result of a misrepresentation of property lines by the party letting the contract,\u201d see G.S. \u00a7 1-539.1(c), and Rowland therefore had no claim to contribution. See id.; cf. N.C.G.S. \u00a7 1B-I(a) (1983) (contribution not proper \u201cin favor of any tortfeasor who has intentionally caused or contributed to the injury\u201d). Accordingly, Rowland has failed to show he was \u201cprejudiced as a result\u201d of the lack of a specific jury instruction on contribution, Lawing, 81 N.C. App. at 162, 344 S.E.2d at 104, and any error by the trial court in that regard was harmless. See Rule 61.\nIn sum, we hold the trial court did not err in denying Rowland\u2019s motions for directed verdict and JNOV, or by granting the Barnards\u2019 motion for directed verdict on defendant\u2019s tortious interference of contract counterclaim. Further, Rowland was not prejudiced as a result of the court\u2019s failure to instruct the jury with respect to the doctrines of impossibility of performance and prevention, or contribution. However, we reverse the trial court\u2019s submission of the issue of punitive damages to the jury and its subsequent judgment including an award of such damages. This cause is therefore remanded to the District Court of Rowan County for entry of a new judgment in favor of plaintiff not inconsistent with the opinion herein. Double costs are assessed, the first set payable in equal shares by the parties, the second set to be paid in equal shares by counsel for the parties.\nAffirmed in part; reversed in part and remanded with instruc- ' tions. Double costs.\nJudges McGEE and SMITH concur.", "type": "majority", "author": "JOHN, Judge." } ], "attorneys": [ "J. Stephen Gray for defendant and third-party plaintiff.", "B.S. Brown, Jr., for plaintiffs.", "Inge and Doran, by Michael Doran, for third-party defendants." ], "corrections": "", "head_matter": "EVERETTE B. BARNARD and wife, DIANE S. BARNARD, Plaintiffs v. BOBBY ROWLAND, d/b/a BOBBY ROWLAND TIMBER & LOGGING, Defendant & Third-Party Plaintiff v. JAMES M. FIFE and wife, MICHELLE H. FIFE, Third-Party Defendants\nNo. COA97-1411\n(Filed 2 March 1999)\n1. Appeal and Error\u2014 briefs \u2014 type size \u2014 double costs\nDouble costs were assessed for violation of N.C.R. App. P. 26(f) where both briefs violated type size restrictions.\n2. Trespass\u2014 wrongful cutting of timber \u2014 sufficiency of evidence\nThe trial court did not err in a trespass action arising from the cutting of timber by submitting to the jury plaintiff-Barnards\u2019 trespass claim or by denying defendant Roland\u2019s JNOV motion where the parties stipulated that the Barnards owned the property subject to the alleged trespass, and, viewed in the light most favorable to plaintiffs, the testimony at trial indicated that defendant Roland entered upon the Barnards\u2019 land without authorization, proceeded to cut timber, and that the Barnards were damaged thereby.\n3. Damages and Remedies\u2014 punitive damages \u2014 trespass and wrongful cutting of timber \u2014 double recovery\nThe trial court erred in a trespass action arising from the cutting of timber by submitting the issue of punitive damages to the jury where plaintiffs sought damages for the value of the timber cut and the diminution in value of their land but elected to seek recovery under N.C.G.S. \u00a7 1-539.1 and relinquished any claim for punitive damages attendant to the common law claim. A plaintiff suing for unlawful cutting or removal of timber may recover either the difference in value of the property immediately before and after the cutting, in addition to punitive damages if appropriate under the facts, or the value of the timber itself doubled by operation of N.C.G.S. \u00a7 l-539.1(a), but not both. Collecting punitive damages under common law and statutory double damages would amount to double recovery.\n4. Contracts\u2014 wrongful interference \u2014 directed verdict\nThe trial court did not err by granting plaintiffs\u2019 motion for a directed verdict on a counterclaim for wrongful interference with contract arising from a claim for wrongful cutting of timber. The record fails to reveal the requisite scintilla of evidence that plaintiffs acted without justification in opposing the logging operations; rather, as owner of adjoining real estate, plaintiffs\u2019 interest in protecting their property from unauthorized logging activities was without doubt reasonable and bona fide.\n5. Contracts\u2014 impossibility of performance and prevention\u2014 no instruction \u2014 no prejudice\nThe trial court did not err in an action arising from the cutting of timber by not instructing the jury on the doctrine of impossibility of performance. In assessing and denying the third-party plaintiff\u2019s claim that the third-party defendants breached the timber contract, the jury necessarily considered whether it was impossible for the defendant and third-party plaintiff to have performed the contract or whether the third-party defendants prevented him from doing so.\n6. Contribution\u2014 instruction not given \u2014 no prejudice\nThere was no prejudice in an action arising from the cutting of timber where the court failed to charge the jury on contribution because the jury determined that defendant trespassed \u201cpurposefully\u201d and the trespass was thus not a result of a misrepresentation of property lines by the party letting the contract, so that defendant had no claim for contribution.\nAppeal by defendant and third-party plaintiff from judgment entered 17 February 1997 by Judge Ted Blanton in Rowan County District Court. Heard in the Court of Appeals 4 June 1998.\nJ. Stephen Gray for defendant and third-party plaintiff.\nB.S. Brown, Jr., for plaintiffs.\nInge and Doran, by Michael Doran, for third-party defendants." }, "file_name": "0416-01", "first_page_order": 450, "last_page_order": 464 }