[CITE: Booker, et al v. Mason and Shorter, 10 CADDNAR 1 (2005)]
[VOLUME 10, PAGE 1]
Cause #: 03-189F
Caption: Booker, et al. v. Mason and Shorter
Administrative Law Judge: Jensen
Attorneys: pro se; pro se
Date: January 11, 2005
FINAL ADMINISTRATIVE JUDGMENT
1. The stumpage value is $102.75 for the trees taken unlawfully from real property owned by Tom E. Booker and Lou E. Booker in Sullivan County, Indiana. The Bookers are entitled to three times the stumpage value from Joshua A. Shorter and Matthew W. Mason, who are jointly and severally liable.
2. Accordingly, the Bookers have an administrative judgment against Shorter and Mason in the total amount of $308.25.
3. This administrative judgment addresses all issues of damage and responsibility, and, after completion of the opportunity for judicial review under IC 4-21.5, may be enforced in a civil proceeding as a judgment.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
1. This proceeding was initiated by Tom E. Booker and Lou E. Booker (hereinafter collectively "the Bookers") with the filing of their complaint on November 6, 2003 against Matthew W. Mason (hereinafter "Mason") and Joshua A Shorter (hereinafter "Shorter") under IC 25-36.5.
2. The Bookers' complaint more specifically alleges that on or near June 24, 2003, Shorter, while under contract with Mason, an adjoining landowner, unlawfully cut several trees from the Bookers' real property. The complaint further provides that the Bookers attempted unsuccessfully to obtain compensation from Mason for the trees unlawfully taken.
3. IC 25-36.5, commonly referred to as the "Timber Buyers Act," places within the responsibility of the Department of Natural Resources the regulation of timber buyers, timber cutters and their agents. Administrative Rules, promulgated pursuant to the authority of IC 25-36.5-1-9, found at 312 IAC 14-1, are also applicable to this proceeding.
4. Procedurally, the Bookers' complaint is controlled by IC 4-21.5 (the "administrative orders and procedures act" or "AOPA"). The Indiana Natural Resources Commission adopted rules at 312 IAC 3-1 to assist in its administration of "AOPA," and 312 IAC 3-1 also applies to this proceeding.
5. The Natural Resources Commission is the ultimate authority for this proceeding. IC 14-10-2-3.
6. The Bookers are owners of real property described as, "a part of the North Half of the Northeast Quarter of Section 1, Township 7 North, Range 10 West, and a part of the North Half of Section 6, Township 7 North, Range 9 West in Sullivan County, Indiana." Stipulated Exhibit #4.
7. Mason is the owner of real property described as, "a part of the North half of the Northeast Quarter of Section 1, Township 7 North, Range 10 West, in Sullivan County, Indiana." Stipulated Exhibit #3.
8. Shorter testified that he was one of the individuals involved in cutting timber under the agreement with Mason.
9. The testimony of Mason and Shorter also established that Shorter negotiated with Mason for the purchase of Mason's timber.
10. Mason testified that there was no written
[VOLUME 10, PAGE 2]
contract between himself and Shorter, but the timber harvested was sold and he and Shorter shared in the proceeds from the sale.
11. Shorter, in this instance, is more appropriately identified as a "timber buyer."[FOOTNOTE 1]
12. The Bookers are "timber growers" within the meaning of 312 IAC 14-2-12 and IC 25-36.5-1-1.
13. personal service was made upon Mason and Shorter.
14. The Commission has jurisdiction over the subject matter and the persons of the parties.
15. The Bookers presented as evidence a surveyor's report prepared by William Mac Steele, L.S. 29400009, a Professional Land Surveyor, for surveyor's field work completed July 23, 2004 and certified on July 26, 2004 for the west property line of the Bookers' real property which adjoins Mason's east property line. Stipulated Exhibit #2.
16. The surveyor's report identifies the location and size of three trees that had been cut on the Bookers' real property. The trees are identified as one twelve inch Ash and one twelve inch Oak located approximately fifty (50) feet from the boundary line, and one fourteen inch Cherry located approximately twenty-eight (28) feet from the boundary line. Stipulated Exhibit #2.
17. Neither Mason nor Shorter disputed the surveyor's report.
18. Testimony was undisputed that the Bookers' had not been compensated for the trees.
19. Mason's and Shorter's testimony was consistent that Shorter approached Mason about cutting some timber off Mason's real property and that upon reaching an agreement Mason walked the real property boundary lines with Shorter before timber cutting began.
20. Shorter testified that on an occasion after timber cutting had commenced, Mason visited Shorter in the woods. Shorter testified that on that occasion he asked specifically about cutting the trees at issue in this proceeding. Shorter's testimony was that Mason told him to go ahead and cut the trees. Mason did not specifically deny this testimony.
21. The Bookers sought damages of $1,326.67 in attorney's fees, Stipulated Exhibit # 1, $650.00 in surveyor's fees necessary to prove ownership of the property from which the trees were taken, three times the stumpage value of the trees unlawfully cut and monetary compensation for time and inconvenience in pursuing this proceeding.
22. Compensation under IC 25-36.5-1-3.2(f)(1) has routinely been limited to damages relating specifically to the unlawful cutting of trees. Damages allowed include amounts for damage to land from heavy equipment, the removal of tree debris, timber stand improvement and residual tree damage. Rose Acre Farms, Inc. v. Ault and Curry, 8 CADDNAR 138 (1999).
23. Attorney fees are ordinarily the responsibility of the represented person and are generally "not recoverable from the opposing party as costs, damages, or otherwise, in the absence of an agreement between the parties, statutory authority, or rule to the contrary." Swartz v. Swartz, 720 N.E.2d 1219, (Ind.App. 1999), citing Salcedo v. Toepp, 696 N.E.2d 426, (Ind.Ct.App. 1998) and City of Hammond v. Marina Enternament Complex, Inc., 681 N.E.2d 1139, (Ind.Ct.App. 1997).
24. Indiana ordinarily does not allow the recovery of litigation expenses as damages. "Expenses of litigation and attorneys fees may not be included in damages unless they are provided for by some prior contract or statute." Bituminous, Inc. v. Culligan Fyrprotexion, Inc., 437 N.E.2d 1360, (Ind.App. 1982), citing Cooper v. High, 317 N.E.2d 177, (1974) and Perry County Council v. State ex rel. Boertich, 301 N.E.2d 219, (1973).
25.It is generally not permissible to recover for the
[VOLUME 10, PAGE 3]
loss of time relating to the bringing of an action, Blackwell v. Acton, 38 Ind. 425.
26. No provision of IC 25-36.5, 312 IAC 14-1 or IC 4-21.5, which control this proceeding, authorizes the award of attorney fees, costs of litigation or compensation for time expended in bringing this action and there was no agreement or contract between the Bookers and Mason and Shorter. Therefore, the Bookers are not entitled to recover attorney's fees, costs of the survey or for time expended in pursuing this proceeding.
27. The Bookers sought no award relating to land damage, treetop or debris removal or any other damage occurring incidental to the cutting of the trees at issue.
28. The Bookers recovery in this proceeding is limited to an award authorized by IC 25-36.5-1-3.2(f)(2), commonly referred to as the 'treble damages clause," which allows an award of damages in an amount equal to three times the stumpage value of the trees.
29. The Bookers presented no evidence of the stumpage value of the trees.
30. Pursuant to IC 25-36.5-1-3.2(j), the final action in this proceeding "must address all issues of damage and responsibility..."
31. In light of the Bookers failure to present evidence of the stumpage value of the trees at issue, this order cannot address all issues relating to damages without valuation of the trees based upon the evidence presented.
32. Shorter testified that the cherry tree contained 52 board feet of lumber and the ash tree contained 38 board feet of lumber and the Bookers' survey provided stump dimensions for all three trees.
33. Gary Gretter, Department of Natural Resources, Division of Forestry, was appointed, without objection from any party, for the purpose of affixing a stumpage value to trees.[FOOTNOTE 2]
34. Through an affidavit filed on November 17, 2004, Mr. Gretter valued the trees at one hundred two dollars and seventy-five cents ($102.75).
35. "The treble damages clause does not allow a timber buyer or a timber grower the defense of mistake of fact as to ownership of real estate where timber is located. Neither is a timber grower required to show the person who wrongfully cut timber acted with malicious intent." Gallien v. Sloan Logging, Pendley & Zurich N. Am., 9 CADDNAR 40, 43, (2002), citing Beeman v. Marling, 646 N.E.2d 382, (Ind.App. 1995).
36. The Commission has established its discretion to award less than the full treble damage award, which "discretion may most appropriately be applied where the timber buyer or timber cutter acts with all due diligence, but because of misdirection or connivance of another, is caused to err." Gallien, supra, citing Hornaday v. Ammerman, Et al., 8 CADDNAR 112 (1999) and Pollock v. Coats, 8 CADDNAR 124 (1999).
37. Testimony was clear that initially Mason walked the property line with Shorter and Shorter identified the trees he planned to cut. During the course of the cutting operation Mason visited Shorter in the field and Shorter asked specifically about cutting the trees involved in this proceeding in addition to those trees that had been previously identified. Shorter testified that Mason told him to cut the trees.
38. Mason did not specifically deny authorizing Shorter to cut the trees, but instead relied upon the fact that he had identified the property boundary for Shorter.
39. The Bookers had no involvement in Shorter's or Mason's actions regarding the cutting of the trees at issue and there exists no evidence that the trees were cut as a result of any connivance or other misguidance on the part of anyone.
40. The Bookers are entitled under IC 25-36.5-1-3.2(f)(2) to recover from Mason and Shorter, who are jointly and severally liable, three times the stumpage value of $102.75 or a total of $308.25.
41. The
[VOLUME 10, PAGE 4]
Bookers should receive an administrative judgment against Mason and Shorter in the amount of three hundred eight dollars and twenty-five cents ($308.25).
FOOTNOTES:
1. A timber buyer is a person in the business of buying timber for the purpose of sawing into lumber, processing or resale 312 IAC 14-2-10 & IC 25-36.5-1-1, while a timber cutter is a person who cuts timber but who is not a timber buyer. [Emphasis not supplied] 312 IAC 14-2-11. Shorter, as either a timber cutter or timber buyer is responsible to a timber grower under the "Timber Buyer's Act," however 312 IAC 14-2-11 excludes "timber buyers" from the definition of a "timber cutter." Therefore, Shorter is appropriately characterized as a timber buyer although no evidence was presented to establish that Shorter is registered as required by IC 25-36.5.
2. It was originally believed that evidence presented was limited to two of the trees and as such the appointment of Gary Gretter indicates that he was to value only two trees. Mr. Gretter determined that sufficient evidence had been presented upon which a value could be established for all three trees. Consequently, the affidavit provided by Mr. Gretter provides a combined value of all three trees.