Robert W. Moorehead v. Anthony Ray Hudson, Sr.
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IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2003-CA-00558-COA
ROBERT W. MOOREHEAD
APPELLANT
v.
ANTHONY RAY HUDSON, SR., SUSAN ANNETTE
HUDSON AND R.L.H. LOGGING, INC.
DATE OF TRIAL COURT JUDGMENT:
TRIAL JUDGE:
COURT FROM WHICH APPEALED:
ATTORNEYS FOR APPELLANT:
ATTORNEYS FOR APPELLEES:
NATURE OF THE CASE:
TRIAL COURT DISPOSITION:
DISPOSITION:
MOTION FOR REHEARING FILED:
CERTIORARI FILED:
MANDATE ISSUED:
APPELLEES
1/31/2003
HON. JAMES LAMAR ROBERTS, JR.
UNION COUNTY CHANCERY COURT
WILLIAM M. BEASLEY
REBECCA L. HAWKINS
WILLIAM O. RUTLEDGE, III
GEORGE MARTIN VIA
CIVIL - PROPERTY DAMAGE
HELD ONLY THE SELLERS OF THE TIMBER
LIABLE FOR THE TIMBER TRESPASS AND
NOT THE LOGGING COMPANY
REVERSED AND REMANDED - 08/03/2004
BEFORE KING, P.J., LEE AND CHANDLER, JJ.
LEE, J., FOR THE COURT:
FACTS AND PROCEDURAL HISTORY
¶1.
In 1966, Robert Moorehead purchased land in Union County to raise a timber crop. In 1996,
Moorehead discovered that timber had been harvested from a portion of his property without his consent.
Moorehead filed suit in chancery court to quite title to the property and to recover damages for the timber
trespass. Moorehead named Anthony Ray Hudson, Sr., Susan Annette Hudson and R.L.H. Logging, Inc.
as defendants. Former Justice James L. Roberts, Jr. was appointed as special chancellor over the case.
¶2.
After the trial, the chancellor accepted memoranda from the parties. After considering the
memoranda and the evidence presented at trial, the chancellor rendered an opinion on June 9, 2000, and
a judgment was entered on July 28, 2000, in conformity with the opinion. Moorehead subsequently
petitioned the court for a new trial or, in the alternative, for an amended judgment. An amended opinion
was rendered on April 9, 2001. R.L.H. Logging then filed a motion requesting additional findings of fact,
an amendment of judgment and a new trial or, in the alternative, an amended judgment. The Hudsons also
filed a motion requesting additional findings of fact, an amendment of judgment and a new trial or, in the
alternative, an amended judgment. All of the defendants subsequently filed a joint motion of similar
substance. The chancellor issued, and the clerk recorded, another judgment on August 20, 2001. The
defendants filed yet another motion requesting additional findings of fact and conclusions of law and a
motion for a new trial or, in the alternative, to amend the judgment. The chancellor filed an opinion titled
"Second Amended Opinion" on May 21, 2002. Moorehead then filed a motion for additional findings of
fact and conclusions of law. The court rendered yet another amended opinion on January 31, 2003. This
opinion withdrew the April 2001 opinion and incorporated and adopted both the June 2000 opinion and
the second opinion from May 2002. In sum, the final opinion of the court found for Moorehead against
the Hudsons as follows:
A.
B.
C.
D.
E.
Actual Damages
Cost of Re-forestation
Attorney's fees
Survey fees
Forester fees
$15,825.94
1,656.00
16,491.14
5,000.00
1,345.00
The chancellor awarded Moorehead a judgment against the Hudsons totalling $40,318.08.
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R.L.H. Logging was awarded a judgment against the Hudsons for attorneys fees in the amount of
$7,016.75 because "R.L.H. Logging's defense was necessitated by the actions of the Defendants Hudson
[sic]." The court entered a judgment in conformity with the final opinion on February 11, 2003. The series
of opinions and orders consistently found Moorehead to be the owner of the property in question, and
neither party is contesting the chancellor's determination of ownership.
¶3.
Aggrieved from the final judgment, Moorehead filed his appeal, asserting two points of error. First,
Moorehead contends that R.L.H. Logging, Inc. should have been found jointly liable on the judgment with
the Hudsons. Moorehead next contests the chancellor's decision not to grant damages against the
defendants as provided in Mississippi Code Annotated Section 95-5-10(2) (Rev. 1994). Finding that the
chancellor erred in excepting R.L.H. Logging from liability under Mississippi Code Annotated Section 955-10(1), this Court reverses in part and remands in part.
STANDARD OF REVIEW
¶4.
The standard of review regarding the decision of a chancellor is well known and well settled. The
findings of a chancellor will not be disturbed or set aside on appeal unless the decision of the trial court is
manifestly wrong and not supported by substantial credible evidence or unless an erroneous legal standard
was applied. Where there is substantial evidence to support the chancellor's findings, this Court is without
the authority to disturb his conclusions, although this Court might have found otherwise as an original matter.
Memphis Hardwood Flooring Co. v. Daniel, 771 So. 2d 924, 930 (¶18) (Miss. 2000).
¶5.
Timber trespass is addressed at section 95-5-10 of the Mississippi Code, which is reproduced
below:
(1) If any person shall cut down, deaden, destroy or take away any tree without the
consent of the owner of such tree, such person shall pay to the owner of such tree a sum
equal to double the fair market value of the tree cut down, deadened, destroyed or taken
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away, together with the reasonable cost of reforestation, which cost shall not exceed Two
Hundred Fifty Dollars ($250.00) per acre. The liability for the damages established in this
subsection shall be absolute and unconditional and the fact that a person cut down,
deadened, destroyed or took away any tree in good faith or by honest mistake shall not
be an exception or defense to liability. To establish a right of the owner prima facie to
recover under the provisions of this subsection, the owner shall only be required to show
that such timber belonged to such owner, and that such timber was cut down, deadened,
destroyed or taken away by the defendant, his agents or employees, without the consent
of such owner. The remedy provided for in this section shall be the exclusive remedy for
the cutting down, deadening, destroying or taking away of trees and shall be in lieu of any
other compensatory, punitive or exemplary damages for the cutting down, deadening,
destroying or taking away of trees but shall not limit actions or awards for other damages
caused by a person.
(2) If the cutting down, deadening, destruction or taking away of a tree without the consent
of the owner of such tree be done willfully, or in reckless disregard for the rights of the
owner of such tree, then in addition to the damages provided for in subsection (1) of this
section, the person cutting down, deadening, destroying or taking away such tree shall pay
to the owner as a penalty Fifty-five Dollars ($55.00) for every tree so cut down,
deadened, destroyed or taken away if such tree is seven (7) inches or more in diameter at
a height of eighteen (18) inches above ground level, or Ten Dollars ($10.00) for every such
tree so cut down, deadened, destroyed or taken away if such tree is less than seven (7)
inches in diameter at a height of eighteen (18) inches above ground level, as established by
a preponderance of the evidence. To establish the right of the owner prima facie, to
recover under the provisions of this subsection, it shall be required of the owner to show
that the defendant or his agents or employees, acting under the command or consent of
their principal, willfully and knowingly, in conscious disregard for the rights of the owner,
cut down, deadened, destroyed or took away such trees.
(3) All reasonable expert witness fees and attorney's fees shall be assessed as court costs
in the discretion of the court.
Miss. Code Ann. § 95-5-10 (Rev. 1994).
ANALYSIS
I.
¶6.
SHOULD R.L.H. LOGGING HAVE BEEN FOUND JOINTLY LIABLE ON THE
JUDGMENT?
In his June 2000 opinion, the chancellor determined that R.L.H. Logging's conduct was "solely
attributable to the actions of the Defendants Hudson;" therefore, the chancellor did not award any amounts
against the logging company. We first note that the construction and nature of section 95-5-10 is highly
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penal in its provisions and remedies. Previous interpretations involving earlier versions of the statute
resulted in very strict construction when addressing its application. Lochridge v. Hannon, 236 Miss. 687,
690, 112 So. 2d 234, 236 (1959). We further note that section 95-5-10 and the provisions contained
therein have been construed by the Mississippi Supreme Court as the "exclusive remedy" for cutting trees
without consent. McCain v. Memphis Hardwood Flooring Co., 725 So. 2d 788, 791 (¶10) (Miss.1998)
(citing Greenlee v. Mitchell, 607 So. 2d 97, 111 (Miss.1992)). This "exclusive remedy" is contingent
upon successfully meeting the requirements and provisions contained within the statute.
¶7.
Section 95-5-10 provides for the liability of "any person [who] shall cut down . . . or take away
any tree without the consent of the owner of such tree . . . ." Miss.Code Ann. § 95-5-10(1) (Rev. 2001).
Under the 'highly penal' aspect of the statute, damages of double the value of the timber cut together with
the costs for reforestation of the land are provided. Id. To recover under the statute, the owner of the
timber must only prove ownership of the timber and that the timber was cut down, deadened or destroyed
or removed by the defendant or the defendant's agent without the owner's consent. Id.
¶8.
Additionally, the statute specifically excludes "good faith" as a defense to timber trespass. "The
liability for the damages established in this subsection shall be absolute and unconditional and the fact that
a person cut down, deadened, destroyed or took away any tree in good faith or by honest mistake shall
not be an exception or defense to liability." Id.
¶9.
Until the enactment of 95-5-10, "good faith" provided an acceptable affirmative defense to timber
trespass. Cases under the previous statute define good faith to denote "honesty of purpose, freedom from
intention to defraud or to deprive others of rights or property to which in equity and good conscience they
are entitled." Strawbridge v. Day, 232 Miss. 42, 52-53, 98 So. 2d 122, 128 (1957). Although the good
faith defense to timber trespass has been expressly excluded by the legislature, this definition of good faith
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is still appropriate and provides assistance in defining what defenses have been excluded under the present
statute. In finding that R.L.H. Logging's actions were "solely attributable to the actions of Defendants
Hudson" and in eliminating the company's liability, the chancellor erroneously attempted to confer upon
R.L.H. an "honesty of purpose and freedom from the intent to deprive" Moorehead of his property rights.
Despite any innocuous reliance on the Hudsons's documentation, by participating in the tree harvest, R.L.H.
Logging nevertheless falls within the purview of the statute and accordingly should share liability for the
timber trespass. By absolving R.L.H. Logging of liability due to its good faith defense, the chancellor
committed an abuse of discretion.
II.
¶10.
SHOULD THE CHANCELLOR HAVE AWARDED DAMAGES PURSUANT TO
95-5-10(2)?
Moorehead argues that he is entitled to the additional damages outlined in section 95-5-10(2). This
section provides for additional damages when the removing or deadening of trees is done "willfully or in
reckless disregard for the rights of the owner of such tree." In the final opinion and judgment, the chancellor
adopted and incorporated his June 2000 opinion as to the issue of damages under section 95-5-10(2); the
June 2000 opinion adopted and incorporated pages 13 through 15 of a brief submitted by the Hudsons;
however, the excerpt adopted and incorporated into the opinion does not address the possibility that
R.L.H. Logging could be responsible to Moorehead for punitive damages under section 95-5-10(2).
Instead, the chancellor addressed R.L.H.'s liability by finding that R.L.H. Logging's actions were "solely
attributable to the actions of Defendants Hudson," instead of determining the company's culpability because
the statute expressly excludes a good faith defense. As addressed in section I of this opinion, good faith
is not a defense to timber trespass; therefore, the chancellor should have made a separate determination
as to R.L.H. Logging's liability under section 95-5-10(2) in view of the absence of this defense. Thus, we
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reverse the chancellor's decision awarding damages against the Hudsons only, finding that under section
95-5-10(1) both R.L.H. Logging and the Hudsons are jointly and severally liable to Moorehead for the
timber trespass. This Court further remands this cause with instructions that the chancellor may consider
punitive damages under section (2) in light of our reversal.
¶11. THE JUDGMENT OF THE UNION COUNTY CHANCERY COURT IS REVERSED
AND REMANDED FOR PROCEEDINGS CONSISTENT WITH THIS OPINION. COSTS OF
THIS APPEAL ARE ASSESSED AGAINST THE APPELLEES.
KING, C.J., BRIDGES, P.J., IRVING, MYERS AND CHANDLER, JJ., CONCUR.
SOUTHWICK, P.J., AND GRIFFIS, J., NOT PARTICIPATING.
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