{ "id": 8549306, "name": "LEON C. BRITT and wife, RUBY BRITT; JAMES G. BRITT and wife, LOUISE BRITT; and FRONIA BRITT FREEMAN and husband, ERTLE FREEMAN v. GEORGIA-PACIFIC CORPORATION", "name_abbreviation": "Britt v. Georgia-Pacific Corp.", "decision_date": "1980-04-01", "docket_number": "No. 7916SC604", "first_page": "107", "last_page": "110", "citations": [ { "type": "official", "cite": "46 N.C. App. 107" } ], "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": "47 N.C.L. Rev. 334", "category": "journals:journal", "reporter": "N.C. L. Rev.", "year": 1969, "opinion_index": 0 }, { "cite": "70 S.E. 633", "category": "reporters:state_regional", "reporter": "S.E.", "year": 1911, "opinion_index": 0 }, { "cite": "154 N.C. 355", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8652385 ], "year": 1911, "opinion_index": 0, "case_paths": [ "/nc/154/0355-01" ] }, { "cite": "66 S.E. 2d 895", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1951, "opinion_index": 0 }, { "cite": "234 N.C. 287", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8621555 ], "year": 1951, "opinion_index": 0, "case_paths": [ "/nc/234/0287-01" ] }, { "cite": "27 L.Ed. 2d 252", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1970, "opinion_index": 0 }, { "cite": "400 U.S. 946", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 12104866, 12105030, 12104936, 12105002, 12105261, 12105230, 12104976, 12105170, 12105043, 12104916, 12105202, 12104889, 12104954 ], "year": 1970, "opinion_index": 0, "case_paths": [ "/us/400/0946-01", "/us/400/0946-08", "/us/400/0946-04", "/us/400/0946-07", "/us/400/0946-13", "/us/400/0946-12", "/us/400/0946-06", "/us/400/0946-10", "/us/400/0946-09", "/us/400/0946-03", "/us/400/0946-11", "/us/400/0946-02", "/us/400/0946-05" ] }, { "cite": "174 S.E. 2d 534", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1970, "opinion_index": 0 }, { "cite": "276 N.C. 714", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8563418 ], "year": 1970, "opinion_index": 0, "case_paths": [ "/nc/276/0714-01" ] }, { "cite": "18 S.E. 2d 166", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1942, "opinion_index": 0 }, { "cite": "220 N.C. 642", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11307444 ], "year": 1942, "opinion_index": 0, "case_paths": [ "/nc/220/0642-01" ] }, { "cite": "189 S.E. 772", "category": "reporters:state_regional", "reporter": "S.E.", "year": 1937, "pin_cites": [ { "page": "773" } ], "opinion_index": 0 }, { "cite": "211 N.C. 295", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8626413 ], "year": 1937, "pin_cites": [ { "page": "296" } ], "opinion_index": 0, "case_paths": [ "/nc/211/0295-01" ] }, { "cite": "235 S.E. 2d 889", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1977, "opinion_index": 0 }, { "cite": "33 N.C. App. 581", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8551126 ], "year": 1977, "opinion_index": 0, "case_paths": [ "/nc-app/33/0581-01" ] }, { "cite": "177 S.E. 2d 735", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1970, "opinion_index": 0 }, { "cite": "10 N.C. App. 109", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8551252 ], "year": 1970, "opinion_index": 0, "case_paths": [ "/nc-app/10/0109-01" ] }, { "cite": "226 S.E. 2d 188", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1976, "opinion_index": 0 }, { "cite": "30 N.C. App. 41", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8551563 ], "year": 1976, "opinion_index": 0, "case_paths": [ "/nc-app/30/0041-01" ] } ], "analysis": { "cardinality": 464, "char_count": 8352, "ocr_confidence": 0.801, "pagerank": { "raw": 2.2218317055209905e-07, "percentile": 0.7777061519802893 }, "sha256": "84b5e8df671cd6d63ad0bddcc2f4906c3b1b2a25bf08df3e8c82abcf03674e38", "simhash": "1:af3145b81a0f92c6", "word_count": 1399 }, "last_updated": "2023-07-14T21:32:37.131990+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Chief Judge MORRIS and Judge HILL concur." ], "parties": [ "LEON C. BRITT and wife, RUBY BRITT; JAMES G. BRITT and wife, LOUISE BRITT; and FRONIA BRITT FREEMAN and husband, ERTLE FREEMAN v. GEORGIA-PACIFIC CORPORATION" ], "opinions": [ { "text": "MARTIN (Harry C-), Judge.\nDefendant first contends the trial court erred in failing to set aside the entry of default. \u201cFor good cause shown the court may set aside an entry of default.\u201d N.C. Gen. Stat. 1A-1, Rule 55(d). A motion pursuant to this rule to set aside an entry of default is addressed to the sound discretion of the court. Privette v. Privette, 30 N.C. App. 41, 226 S.E. 2d 188 (1976). Whether \u201cgood cause\u201d is shown by movant, who bears the burden of proof, is in the sound discretion of the trial court and the facts and circumstances of the particular case govern. Whaley v. Rhodes, 10 N.C. App. 109, 177 S.E. 2d 735 (1970). The exercise of that discretion will not be disturbed on appeal unless a clear abuse of discretion is shown. Frye v. Wiles, 33 N.C. App. 581, 235 S.E. 2d 889 (1977).\nDefendant\u2019s affidavits show that although the legal department of defendant received the suit papers in this case on 7 June 1978, they were misplaced and not relocated till 12 July 1978, the day entry of default was made. The trial court in its discretion held this did not constitute \u201cgood cause.\u201d We find no abuse of discretion by the trial court, and this assignment of error is overruled.\nAppellant next contends the court erred in awarding nominal damages to plaintiffs in addition to actual damages as a result of defendant\u2019s trespass. We agree. Nominal damages are \u201ca small, trivial sum awarded in recognition of a technical injury which has caused no substantial damage.\u201d Wolfe v. Montgomery Ward & Co., 211 N.C. 295, 296, 189 S.E. 772, 773 (1937). Nominal damages are recoverable where some legal right has been violated but no actual loss or substantial injury has been sustained. Hairston v. Greyhound Corp., 220 N.C. 642, 18 S.E. 2d 166 (1942). Here, plaintiffs have sustained substantial actual damages. They are not entitled to an award of nominal damages.\nDefendant contends there was no competent evidence to support the court\u2019s finding of damages for the value of timber cut. Defendant argues that none of plaintiffs\u2019 witnesses as to value knew anything about the value of standing timber or of the timber cut.\nThe witness Leon C. Britt testified without objection that he had an opinion as to the value of the timber on plaintiffs\u2019 property immediately before it was cut and that this value was $4,000. The trees were pine and had diameters of from ten inches down. He had sold timber off other land at a sawmill.\nErtle Freeman testified the property had seedling pines on it, growing since 1954. In his opinion the timber had a fair value of $4,000 at the time it was cut. He testified the cost to reforest or reseed the property would be $1,500.\nJames Britt also testified without objection that the value of the timber before cutting was $4,000.\nDefendant\u2019s evidence indicated the value of any trees cut by defendant was considerably less than plaintiffs\u2019 estimates.\nBy failing to object to plaintiffs\u2019 evidence as to the value of the timber, defendant waived any objection as to the competence of this testimony. State v. Blackwell, 276 N.C. 714, 174 S.E. 2d 534, cert. denied, 400 U.S. 946, 27 L.Ed. 2d 252 (1970); Lambros v. Zrakas, 234 N.C. 287, 66 S.E. 2d 895 (1951). We hold there was sufficient evidence to support the court\u2019s finding of damages based upon the value of plaintiffs\u2019 timber cut by defendant.\nLast, defendant contends the court erred in awarding plaintiffs \u201cincidental damages\u201d in addition to damages for timber cut. Where plaintiff sues for the unlawful cutting or removal of timber, there are two alternative measures of damages available. One gives the landowner the difference in the value of his property immediately before and immediately after the cutting. Jenkins v. Lumber Co., 154 N.C. 355, 70 S.E. 633 (1911). The other gives plaintiff the value of the timber itself. This latter value is then doubled by reason of N.C.G.S. 1-539.1(a) which allows plaintiff to recover double the value of timber cut or removed. This statute not only doubles the value of the timber cut but imposes strict liability as well. See Dobbs, Trespass to Land in North Carolina \u2014 Part II. Remedies for Trespass, 47 N.C.L. Rev. 334 (1969).\nHere plaintiffs seek to recover both their statutory damages and damages for the diminution in value of their property. The loss of value for the timber cut is inextricably involved in the damages for diminution in value of the real property. Plaintiffs cannot recover both. We hold that plaintiffs made an election to recover their statutory damages when they proceeded upon that theory at trial and recovered damages thereunder, albeit the court erroneously awarded them \u201cincidental damages.\u201d\nOur holding today is in effect a continuation of the election of remedies a landowner had at common law to sue in trespass de bonis asportatis for the value of the trees (now doubled by reason of the statute) or in trespass quare clausum fregit for injury to the freehold.\nThe result is: the judgment is vacated and the case is remanded to the Superior Court of Robeson County for the entry of judgment in favor of plaintiffs for the sum of $3,000.\nVacated and remanded.\nChief Judge MORRIS and Judge HILL concur.", "type": "majority", "author": "MARTIN (Harry C-), Judge." } ], "attorneys": [ "Lee and Lee, by W. Osborne Lee, Jr., for plaintiff appellees.", "I. Murchison Biggs for defendant appellant." ], "corrections": "", "head_matter": "LEON C. BRITT and wife, RUBY BRITT; JAMES G. BRITT and wife, LOUISE BRITT; and FRONIA BRITT FREEMAN and husband, ERTLE FREEMAN v. GEORGIA-PACIFIC CORPORATION\nNo. 7916SC604\n(Filed 1 April 1980)\n1. Rules of Civil Procedure \u00a7 55.1\u2014 setting aside default \u2014 no good cause shown\nDefendant failed to show good cause for the setting aside of entry of default where defendant\u2019s affidavits showed that, although the legal department of defendant received the suit papers in this case on 7 June 1978, they were misplaced and not relocated until 12 July 1978, the day entry of default was made.\n2. Trespass \u00a7 8\u2014 wrongful cutting of timber \u2014 award of nominal and actual damages improper\nIn an action to recover for damages to real property and for the value of timber removed, the trial court erred in awarding nominal damages to plaintiffs in addition to actual damages as a result of defendant\u2019s trespass, since nominal damages are a small sum awarded in recognition of a technical injury which has caused no substantial damage, but plaintiffs in this case sustained substantial actual damages.\n3. Trespass \u00a7 6\u2014 evidence of value of timber cut \u2014 competency\nEvidence was sufficient to support the trial court\u2019s finding of damages based upon the value of plaintiffs\u2019 timber cut by defendant where the owners of the land from which the timber was cut testified to their opinions concerning the value of the timber; furthermore, defendant waived any objection as to competence of such testimony where it failed to object.\n4. Trespass \u00a7 8.2\u2014 wrongful cutting of timber \u2014 damages\u2014election\nPlaintiffs who sought to recover both their statutory damages for cut timber and damages for diminution in value of their property elected to recover their statutory damages when they proceeded upon that theory at trial and recovered damages thereunder, albeit the court erroneously awarded them \u201cincidental damages.\u201d G.S. l-539.1(a).\nAPPEAL by defendant from Brannon, Judge. Judgment entered 8 March 1979 in Superior Court, ROBESON County. Heard in the Court of Appeals 28 January 1980.\nPlaintiffs own three acres of land in Robeson County. Defendant owns a much larger tract surrounding plaintiffs\u2019 property on three sides. Defendant is engaged in the timber business and, on 5 December 1977, entered upon plaintiffs\u2019 land without consent and cut and removed certain merchantable timber. Plaintiffs brought suit against defendant for this trespass, asking recovery for damages to the real property and also for the value of the timber removed. Defendant failed to plead within the required time, and default was entered against it. The trial court denied defendant\u2019s motion to vacate the entry of default, and the case was set for trial as to damages. All parties waived jury trial and after hearing the evidence, the trial court made findings of fact, conclusions of law, and entered judgment awarding plaintiffs nominal damages of $10, incidental damages of $2,000 and $3,000 damages for double the value of timber removed, a total of $5,010. Defendant appeals from the judgment entered.\nLee and Lee, by W. Osborne Lee, Jr., for plaintiff appellees.\nI. Murchison Biggs for defendant appellant." }, "file_name": "0107-01", "first_page_order": 135, "last_page_order": 138 }