Richie Hendricks, Corrina Hendricks, and Weyerhaueser Company v. James Read and Mary Read

ca02-273

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

WENDELL L. GRIFFEN, JUDGE

DIVISION II

CA02-273

April 16, 2003

RICHIE HENDRICKS, CORRINA AN APPEAL FROM VAN BUREN COUNTY

HENDRICKS, AND WEYERHAUESER CIRCUIT COURT

COMPANY [NO. CIV2000-104]

APPELLANTS

v. HONORABLE CHARLES CLAWSON,

CIRCUIT JUDGE

JAMES READ AND MARY READ

APPELLEES AFFIRMED

A Van Buren County jury imposed damages of $11,205.94 against appellants for cutting appellees' timber. Appellants contend that the verdict should not stand due to the jury's inconsistent answers to verdict interrogatories. They also argue that the trial court erred in doubling the damage award. We affirm.

On July 7, 1997, appellants Richie and Corrina Hendricks contracted to purchase thirty-two heavily wooded acres from appellees. They were to pay for the land in 240 monthly installments, but they were given immediate possession. The contract contained the following restriction on appellants' use of the property:

No timber will be cut during the term of this contract, except for clearing homesite or gardens, until the purchase price is fully paid.

Despite the above provision, appellants executed a timber contract on October 9, 2000, in which they agreed to sell pine saw timber on the thirty-two acres to Weyerhaueser Company. Appellants represented to Weyerhaueser that they "[owned] the land and timber thereon free and clear of all encumbrances" and that they had "the right to enter into this contract without the consent of any other person." Timber was harvested in November 2000 for which appellants received $11,205.94. Appellees learned of the timber sale and filed suit against appellants and Weyerhaueser, seeking treble damages, i.e., triple the value of the cut trees, pursuant to Ark. Code Ann. § 18-60-102(a) (1987).

A trial was held on July 17, 2001, and the jury returned its verdict using the following interrogatories:

INTERROGATORY NO. 1: Did Richie A. Hendricks and Corrina Hendricks intentionally cut down or carry away trees, standing or growing on land to which James A. Read or Mary Read had title?

________No________ (Yes or No)

IF YOU HAVE ANSWERED INTERROGATORY NO. 1 "YES," THEN ANSWER INTERROGATORY NO. 2. IF YOU HAVE ANSWERED INTERROGATORY NO. 1 "NO," THEN GO DIRECTLY TO INTERROGATORY NO. 3

INTERROGATORY NO. 2: Did the Defendant, Weyerhauser [sic] Company, cut tress on land to which James A. Read and Mary Read had title, at the advice and direction of Richie A. Hendricks or Corrina Hendricks?

_____________________ (Yes or No)

AFTER YOU HAVE ANSWERED INTERROGATORY NO. 2, THEN PROCEED DIRECTLY TO INTERROGATORY NO. 5 [sic] ON DAMAGES. IF YOU HAVEANSWERED INTERROGATORIES NOS. 1 AND 2, DO NOT ANSWER INTERROGATORIES NOS. 3 AND 4.

INTERROGATORY NO. 3: Did Richie A. Hendricks and Corrina Hendricks knowingly cut down or carry away trees or timber on land to which James A. Read or Mary Read had title?

________Yes_______ (Yes or No)

IF YOU ANSWERED INTERROGATORY NO. 3 "YES," THEN ANSWER INTERROGATORY NO. 4. IF YOU HAVE ANSWERED INTERROGATORY NO. 3 "NO," THEN ANSWER INTERROGATORY NO. 5 AND DO NOT ANSWER INTERROGATORY NO. 4.

INTERROGATORY NO. 4: Did the defendant, Weyerhauser Company, aid, abet or assist Richie A. Hendricks or Corrina Hendricks in cutting down trees on land to which James A. Read and Mary Read had title?

_________Yes________ (Yes or No)

IF YOU ANSWERED INTERROGATORY NO. 4, THEN ANSWER INTERROGATORY NO. 6 ON DAMAGES, AND DO NOT ANSWER INTERROGATORY NO. 5. ANSWER INTERROGATORY NO. 5 ONLY IF YOU HAVE ANSWERED INTERROGATORIES NO. 1 AND 3 "NO."

INTERROGATORY NO. 5: Did Richie A. Hendricks and Corrina Hendricks breach their contract for the purchase of property with James A. Read and Mary Read?

________________________ (Yes or No)

INTERROGATORY NO. 6: (Damages) What sum of money will fairly and adequately compensate James A. Read and Mary Read for:

Value of timber $__11,205.94____

Cost of restoring land $______1.00____

/s/ Foreman

After the jury returned to the courtroom with the interrogatory answers, the trial court confirmed the answers with the foreman, and the jury was thereupon discharged.

The parties submitted post-trial briefs on the effect of the jury verdict. In light of the jury's answer of "Yes" to Interrogatory No. 3, appellees urged the trial court to double the damages, pursuant to Ark. Code Ann. § 15-32-301 (Repl. 2000), which allows an owner to recover double damages from those who "knowingly" cut down his trees. The trial judge reviewed the briefs and doubled the award as appellees requested. An order was entered accordingly, and appellants filed a timely notice of appeal.

Appellants' first argument is that the jury's verdict should be set aside as inconsistent because, in a different set of interrogatories that are not part of the record, the jury actually found that appellants did not breach their contract with appellees. Appellants argue that it is inconsistent for the jury to impose liability on them on the one hand yet find that no breach occurred on the other.

The answer line to Interrogatory No. 5, which asks whether appellants breached the contract, was left blank. As for any interrogatory answers that are not part of the record, we will not consider arguments based on matters not contained in the record or reverse a trial judge based on facts outside the record. General Elec. Credit Auto Lease, Inc. v. Paty, 29 Ark. App. 30, 776 S.W.2d 829 (1989); see also In the Matter of the Estates of Seay v. Quinn, 352 Ark. ___, ___ S.W.3d ___ (February 28, 2003). We also observe that appellants made no objection to the form of the verdict interrogatories. The interrogatories specifically permitted, and even instructed, the jurors to disregard the breach of contract question if they answered Interrogatory Nos. 3 and 4 affirmatively, which they did. If appellants disagreedwith the manner in which the interrogatories were formatted, they should have objected to the trial court. See, e.g., Wymer v. Dedman, 233 Ark. 854, 350 S.W.2d 169 (1961). Further, if appellants believed that an irregularity had occurred in the jury verdict, the correct time to object would have been before the jury was discharged. Gibson Appliance Co. v. Nationwide Ins. Co., 341 Ark. 536, 20 S.W.3d 285 (2000). However, the only objection by appellants came in a post-trial motion, which is not sufficient. See P.A.M. Transp. v. Arkansas Blue Cross & Blue Shield, 315 Ark. 234, 868 S.W.2d 33 (1993). For these reasons, we find no error on this point.

Appellants' second argument challenges the doubling of the damage award, pursuant to Ark. Code Ann. § 15-32-301 (Repl. 2000), which reads in pertinent part:

Liability for unlawfully cutting, etc.

Any person who shall knowingly cut down, destroy, or carry away any tree, timber, lumber, staves, or shingles made therefrom contrary to this subchapter, any person who shall aid and abet or assist any other person in so doing, and any person who shall purchase or receive any trees, timber, lumber, staves, or shingles knowing them to have been cut contrary to the provisions of this subchapter shall be jointly and severally liable to the owner in double the value thereof, to be recovered by action at law....

Appellants contend that the trial court erred in doubling the damages because the jury's finding that they acted "knowingly" was inconsistent with its finding that no breach of contract occurred. Again, appellants support their argument with answers to interrogatories that are not part of the record. For the same reasons stated earlier, we will not consider an assignment of error based on matters outside the record.1

Finally, appellants contend that it was error to award double damages because appellees' complaint prayed only for treble damages. Generally, a party must plead for multiple damages in order to recover them. See Linebarger v. Owenby, 79 Ark. App. 61, 83 S.W.3d 435 (2002). This is so because a defendant must have adequate notice of the remedy he will be confronting. Hackleton v. Larkin, 326 Ark. 649, 933 S.W.2d 380 (1996). In Hackleton, the supreme court held that, even though a plaintiff had pled for treble damages under section 18-60-102(1), the trial court could not, on its own, impose double damages under Ark. Code Ann. § 20-22-304 (Repl. 2000) (permitting one whose property has been destroyed by fire to recover double damages) without them having been pled.

The case before us is distinguishable from Hackleton in that appellants, without objection, permitted the jury to be furnished with interrogatories that referenced the "knowingly" requirement of section 15-32-301 and permitted the jury to be instructed on whether appellants had "knowingly" cut the trees. Also, unlike in Hackleton, appellants did not object to the fact that appellees had not pled for double damages. Moreover, section 15-32-301 was argued by both parties in their post-trial briefs. The statute clearly provides that damages shall be doubled against a defendant who knowingly cuts down trees belonging to another person.

Affirmed.

Stroud, C.J., and Roaf, J., agree.

1 Appellants also under this point briefly advance an argument that neither the treble nor the double damages statute should apply because appellants were nottrespassers on appellees' property. Appellants have not developed this argument on appeal, nor do they cite authority or convincing argument such that we are inclined to address it. See Spears v. Spears, 339 Ark. 162, 3 S.W.3d 691 (1999). However, we note that, while the treble damages statute makes reference to "the person so trespassing" and has been held not to apply where timber is cut by the owner of an interest in the land, such as a co-tenant, see Fitzhugh v. Norwood, 153 Ark. 412, 241 S.W. 8 (1922), the double damages statute under which appellants were held liable contains no reference to trespassing.