Fordham v. Eason , 131 N.C. App. 226 ( 1998 )

505 S.E.2d 895 (1998)

Wendell A. FORDHAM, Plaintiff-Appellee,
v.
A.V. EASON and wife, Grace W. Eason; Defendants, and American Woodland Industries, Inc., Defendant-Appellants.

No. COA98-57.

Court of Appeals of North Carolina.

October 20, 1998.

Narron, O'Hale and Whittington, P.A. by Jacquelyn L. Lee, Smithfield, O. Hampton Whittington, Jr., Benson, and James W. Narron, Smithfield, for plaintiff-appellee.

Thomas Edward Hodges, Benson, for American Woodland Industries, Inc., defendant-appellant.

HORTON, Judge.

Woodland 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.

The trial court granted summary judgment for plaintiff on all of these claims. Therefore, we must examine each of defendant's claims to determine whether a material question of fact exists for one or more of them.

I. Interference with Contractual Relations and Unfair and Deceptive Trade Practices

Before 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'n 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's brief are deemed abandoned. State v. Wilson, 289 N.C. 531, 535, 223 S.E.2d 311, 313 (1976). Defendant Woodland's brief failed to address the issues of interference with contractual relations and unfair and deceptive trade practices. Therefore, these issues are abandoned.

II. Wrongful Cutting of Timber and Trespass

The 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. § 1-539.1 (1996) provides that

[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.

(Emphasis added).

In no sense was Woodland the "owner" of the lands in question, although Woodland was allowed to enter upon the Easons' lands to cut timber. "In 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." 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.

Furthermore, 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'n 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.

III. Abuse of Process

Finally, 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, 395 S.E.2d 85 (1990). "[T]he gravamen of a cause of action for abuse of process is the improper use of the process after it has been issued." 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). "An ulterior motive alone is not sufficient" to sustain an abuse of process claim. Id.

In the instant case, Fordham obtained a preliminary injunction in order to prevent Woodland from continuing its removal of timber from the Easons' 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. § 1-487, which provides that "no 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." (Emphasis added).

However, 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' lands to cut and remove timber worth over $100,000.00. In addition, Woodland presented evidence that Fordham admitted he entered the Easons' property and cut and removed timber and pulpwood after the injunction was issued.

A review of this evidence shows that Woodland has raised a genuine issue of material fact concerning Fordham's motives in obtaining the injunction and Fordham's actions thereafter. Therefore, summary judgment was improper on the abuse of process claim.

In 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.

Affirmed in part and reversed in part.

JOHN C. MARTIN, and TIMMONS-GOODSON, JJ., concur.