IN THE COURT OF APPEALS OF NORTH CAROLINA No. COA18-354-2 Filed: 16 April 2019 Bertie County, No. 15-CVS-264 BETTY BURDEN JACKSON, NANCY BURDEN ELLIOTT; JAMES BURDEN, REBECCA BURTON BELL, DARREN BURTON, CLARENCE BURTON, JR. and JOHN BURDEN, Plaintiffs, v. DON JOHNSON FORESTRY, INC. and EAST CAROLINA TIMBER, LLC, and NELLIE BURDEN WARD, ALBERT R. BURDEN, LEVY BURDEN, CLARENCE L. BURDEN and BRENDA B. MILLER, Other Grandchildren Defendants, and EAST CAROLINA TIMBER, LLC, Third-Party/Counterclaim Plaintiff, v. ESTATE OF WILLIAM F. BAZEMORE by and through its Executors, NELLIE WARD and TARSHA DUDLEY, and ESTATE OF FLORIDA BAZEMORE by and through its Administrator, MARIA JONES, Third-Party/Counterclaim Defendants. Appeal by Plaintiffs, appeal by Defendant East Carolina Timber, LLC, and appeal by Third-Party Defendant Estate of Florida Bazemore, all from judgment entered 9 November 2017 by Judge Wayland J. Sermons, Jr., in Bertie County Superior Court. Heard in the Court of Appeals 3 October 2018. JACKSON V. DON JOHNSON FORESTRY Opinion of the Court Hornthal, Riley, Ellis & Maland, LLP, by M. H. Hood Ellis and Casey L. Peaden, for the Plaintiff. Yates, McLamb & Weyher, L.L.P., by Christopher J. Skinner and Denaa J. Griffin, for Defendant Don Johnson Forestry, Inc. McAngus Goudelock & Courie, PLLC, by Elizabeth H. Overmann, and Ward and Smith, P.A., by E. Bradley Evans, for Defendant and Third- Party/Counterclaim Plaintiff East Carolina Timber, LLC. Dixon & Thompson Law PLLC, by Paul Faison S. Winborne, for the Third- Party/Counterclaim Defendant Estate of Florida Bazemore. DILLON, Judge. This is an appeal and cross-appeal by a number of parties from a summary judgment order entered in this case involving alleged damages caused by the unauthorized cutting of timber from a certain tract of land. I. Background In 1982, Z. J. Burden died, bequeathing a large tract of land (the “Property”) to his lineal descendants. Specifically, pursuant to Mr. Burden’s will, Mr. Burden’s five children, or the survivor(s) of them, received a life estate in the Property1; and the fee simple remainder interest was held by those grandchildren of Mr. Burden who were alive at the death of the last of Mr. Burden’s five children. That is, the Property would not pass in fee simple absolute to Mr. Burden’s grandchildren until all of his 1 Actually, the terms of Mr. Burden’s will provided that the Property would first pass to Mr. Burden’s widow for life, before passing to their five children for their lives. -2- JACKSON V. DON JOHNSON FORESTRY Opinion of the Court children had died, and would only pass to those grandchildren who survived all of Mr. Burden’s five children. Mr. Burden’s will also granted to his children, or the survivor(s) of them, during the life tenancy, the right to sell any timber growing on the Property that was at least twelve (12) inches in diameter for any reason they saw fit, without having to share the proceeds from the sale with the remaindermen-grandchildren. In early 2014, Florida Bazemore was the sole surviving child of Mr. Burden and, therefore, was the sole ...
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