Brent Gray v. Glen Koons

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION III

BRENT GRAY

APPELLANT

V.

GLEN KOONS

APPELLEE

CA03-964

APRIL 7, 2004

APPEAL FROM THE SALINE COUNTY CIRCUIT COURT

CIV01-250-2

HON. GARY M. ARNOLD, JUDGE

AFFIRMED IN PART; REVERSED AND REMANDED IN PART

Larry D. Vaught, Judge

This is the second appeal from the trial court's order finding that appellant trespassed on appellee's property and unlawfully cut trees. In Gray v. Koons, CA-02-1355 (June 18, 2003), we dismissed the appeal for lack of a final order. A final appealable order was subsequently entered on July 10, 2003. The trial court specifically found the trees to be worth $7,992.13 and awarded appellee treble damages in the amount of $23,976.39 pursuant to Ark. Code Ann. § 18-60-102 (1987). Appellant raises three points of appeal: (1) there was no evidence that appellant cut the trees on the property located behind lot 16; (2) the trial court used the shade tree value to assess damages for trees that were removed in a large, unimproved area, and the proper measure of damages should have been the diminished value of the land or the timber value of the trees; (3) the trial court should not have awarded treble damages because the appellee failed to prove that the appellant purposefully, recklessly or negligently cut the trees on his property. We agree with appellant's first point of appeal that appellee failed to establish that appellant cut the trees on the property, but find no merit to the second and third points. Therefore, we affirm in part and reverse and remand in part.

Appellee Glen Koons owns 170 acres of unimproved land in Saline County that adjoin two lots in the Gerante Subdivision of Hot Springs Village (lots 8 and 16) purportedly owned by appellant Brent Gray, who is a realtor. Appellee filed a complaint on May 18, 2001, naming appellant, Katheleen Cagle, and Robert Kasten as defendants. With respect to appellant, appellee alleged that in October 2000, appellant trespassed on his land adjoining lot 81 and damaged it by cutting trees. Appellee also alleged that prior to October 2000, appellant trespassed upon his land adjacent to lot 16 and damaged it by cutting down trees. With respect to Cagle, appellee alleged that she was the owner of lot 8 and that she wilfully and intentionally had her agent enter appellee's land adjoining lot 8 to remove trees. Appellee asserted that the damage to the land adjoining lot 16 was $4,472.44 and to the land adjoining lot 8 was $3,519.69; he sought treble damages pursuant to Ark. Code Ann. § 18-60-102(b). The complaint against Kasten was dismissed with prejudice by an order entered November 16, 2001, and the complaint against Cagle was dismissed with prejudice by an order entered July 10, 2003.

During the trial, appellee testified, along with Ralph Biles, a real estate appraiser; appellant testified in his defense. At the conclusion of the trial, the judge found that the decision hinged solely on credibility and that appellee was more credible than appellant. The judge found that appellee proved damages in the amount of $7,992.13 and awarded treble damages in the amount of $23,976.39 pursuant to Ark. Code Ann. § 18-60-102(b), and an order was entered on August 15, 2002. The order provided that the damages for trees cut on appellee's land adjoining lot 8 amounted to $4,472.44 and lot 16 amounted to $3,519.69.2

Appellant first contends that the evidence is insufficient to support the trial court's finding that he trespassed on appellee's property adjoining lot 16 and caused damages in the amount of$4,472.44. In bench trials, the standard of review on appeal is whether the trial court's findings were clearly erroneous. Schueck v. Burris, 330 Ark. 780, 957 S.W.2d 702 (1997). The appellate court views the evidence in a light most favorable to the appellee, resolving all inferences in favor of the appellee; disputed facts and determinations of the credibility of witnesses are within the province of the fact finder. Ford Motor Credit Co. v. Ellison, 334 Ark. 357, 974 S.W.2d 464 (1998).

Appellee testified at trial that in September 2000 he was using a backhoe on his property adjoining lot 8 when it broke. He started to walk around and heard a chainsaw. Appellee stated that when he got close to the area, he realized that appellant was on his property. The chainsaw was gone, but he saw appellant dropping a large oak tree. He heard about ten trees being cut, and saw that more than thirty had been cut; all of the trees were left to rot. Appellee described appellant as "pretty shaken up about being caught." He testified that appellant stated that he was cutting a view for his lot in the village. Appellee told appellant that he wanted him off his property, and when appellant found out it was appellee's property, appellant wanted to settle up right there. Appellee testified that when he was investigating his trees being cut down, he recalled that there were trees down on his property behind lot 16; the trees on both tracts were cut the same way. Appellee noticed that there was an Approved Realty sign on both lots 8 and 16 and called Approved Realty to find out the price of the lots and inquire about "the cut." The person who appellee talked to identified himself as Brent Gray and told him that the lots sold for $10,000-$12,000 because of the view. Appellee then informed appellant that he was the one who caught him cutting trees the previous day.

Appellant, on the other hand, denied being on appellee's property. He explained that he was underbrushing on lot 8, which he owned at the time. Appellant testified that he was surprised to learn that appellee owned the property behind him because he thought Weyerhaeuser owned the property because there had been a lot of cutting. He stated that at the end of his conversation with appellee, they talked about appellant buying some of the trees to open up a view of lot 8 because it would make it worth more money. He testified that a few days later, appellee called him and accused him of cutting trees behind lot 16. He stated that he bought lot 16 from a church.

Appellant does not challenge the trial court's decision in regard to lot 8, but instead only challenges the decision as to lot 16. Based on the evidence presented at trial, we hold that the trial court's finding that appellant trespassed on appellee's land behind lot 16 was clearly erroneous. We recognize that the trial court rendered its decision solely on the basis of credibility and that determinations of the credibility of witnesses are within the province of the fact finder. Ford Motor Credit Co. supra. However, there was no evidence as to when the trees behind lot 16 were cut. The only link between the trees being cut behind lot 16 and appellant is that appellant owned lot 16 at one time (whether it was at the same time the trees were cut is uncertain) and that the trees on lot 16 were cut the same as the trees on lot 8. By appellee's own testimony, he purchased his property in February 1999. While there is no testimony as to when the trees behind lot 16 were cut, the map introduced by appellee as exhibit 1 indicates that the trees were cut in Fall 1998 or Fall 1999. Appellee did not own the property in 1998. Based on the foregoing, we conclude that the trial court clearly erred in finding that appellant trespassed on appellee's property behind lot 16 and caused damages in the amount of $4,472.44.

For his second point of appeal, appellant contends that the trial court incorrectly used the shade tree value of the trees in awarding damages, instead of the timber value or diminished value of the land. His argument is based on the fact that there is no indication of the intended use of appellee's unimproved property. However, we cannot reach the merits of appellant's argument because he failed to raise the issue before the trial court. Matters not raised in the court below cannot be considered on appeal. Wolff v. Alexander Film Co., 186 Ark. 848, 56 S.W.2d 424 (1933); see also Hale v. Hays, 251 Ark. 759, 475 S.W.2d 145 (1972).

Lastly, appellant argues that the trial court should not have awarded treble damages because the appellee failed to prove that the appellant purposefully, recklessly or negligently cut the trees on his property. The trial court found that appellee was entitled to treble damages under Arkansas Code Annotated section 18-60-102(b). This statute provides as follows:

(a) If any person shall cut down, injure, destroy, or carry away any tree placed or growing for use or shade or any timber, rails, or wood, standing, being, or growing on the land of another person; shall dig up, quarry, or carry away any stone, ground, clay, turf, mold, fruit, or plants; or shall cut down or carry away, any grass, grain, corn, cotton, tobacco, hemp, or flax, in which he has no interest or right, standing or being on any land not his own, or shall wilfully break the glass, or any part of it, in any building not his own, the person so trespassing shall pay the party injured treble the value of the thing so damaged, broken, destroyed, or carried away, with costs.

(b) If any person trespasses upon land in violation of the provisions of this section and if the land is owned by several joint tenants, tenants in common, coparceners, or other co-owners, then any co-owner who has not given consent to the trespass shall be entitled to treble the value of the thing so damaged, broken, destroyed, or carried away, with costs, the treble damages to be computed according to the amount of the undivided interest of the co-owner.

(c) If on the trial of any action brought under the provisions of this section it shall appear that the defendant had probable cause to believe that the land on which the trespass is alleged to have been committed, or that the thing so taken, carried away, injured, or destroyed, was his own, the plaintiff in the action shall recover single damages only, with cost.

Although appellant's complaint and the order appealed from reference subsection (b), it appears subsection (a) was intended considering the language of the statute and appellant's argument. The treble damages remedy under subsection (a) requires a showing of intentional wrongdoing. Hackleton v. Larkan, 326 Ark. 649, 933 S.W.2d 380 (1996).

At trial, appellee testified that he heard a chainsaw and subsequently caught appellant pushing over a tree that had been cut. Although the testimony was disputed by appellant, appellee indicated that appellee was a "couple of hundred feet or more on my property." Appellee stated that appellant appeared shaken up and that appellant told him he was cutting a view for his lot in the village. Appellant testified that opening up a view on his lots would increase the value of the property. Based on this evidence and the trial court's finding that appellant was not credible, we cannot say that the trial court's award of treble damages for the cutting on lot 8 was clearly erroneous. Moreover, appellant himself concedes that this issue hinges on credibility, but challenges the determination of credibility. As stated previously, disputed facts and determinations of the credibility of witnesses are within the province of the fact finder. Ford Motor Credit, supra.

Based on the foregoing, we reverse the $4,472.44 award of damages for the trees cut behind lot 16. Because the damages were trebled, the total amount of the $23,976.39 judgment should be reduced accordingly. We remand to the trial court for entry of a judgment consistent with thisopinion.

Affirmed in part; reversed and remanded in part.

Neal and Roaf, JJ., agree.

1 Although the complaint indicates lot 16, the evidence presented at trial reveals that lot 8 was intended.

2 Based on the testimony of Ralph Biles, the amount of damages to the land adjoining lot 16 was $4,472.44 and the land adjoining lot 8 was $3,519.69.