CADDNAR

[CITE AS: Ellis v. Brading, et al., 11 CADDNAR 238 (2007)]

 

[VOLUME 11, PAGE 238]

 

Cause #: 06-074F

Caption: Ellis v. Brading, et al.

Administrative Law Judge: Jensen

Attorneys: pro se (Ellis); pro se (Brading); Carl Miller (International Wood, Inc.);

Michael Maschmeyer, David Nachand (Koetter Woodworking)

Date: December 20, 2007

 

 

FINAL ADMINISTRATIVE JUDGMENT

 

105. Ellis is granted a total administrative judgment of $16,293.00 for the wrongful harvest of timber, which sum represents three times the stumpage value of the timber wrongfully harvested.

 

106. Brading is liable to Ellis for the entire sum.

 

107. Hortenberry’s liability is limited to the actual stumpage value of $5,431.00, which liability she shares with Brading, jointly and severally.

 

 

FINDINGS OF FACT AND CONCLUSIONS OF LAW

 

 

PROCEDURAL HISTORY

 

1.      The instant proceeding was initiated by correspondence filed on April 13, 2006 by Claimant, Rodney Ellis (“Ellis”), who alleged that Respondents, Danny Brading (“Brading”), Tina Hortenberry (“Hortenberry”), Ann Terry and Raymond Terry (collectively “the Terrys”), had harvested timber without authorization from real property owned by Ellis, and had further failed to compensate Ellis for the value of the timber harvested, all of which Ellis alleged to be in violation of Ind. Code. §§ 25-36.5-1 et seq. and 312 IAC 14-1 et seq.

 

2.      Ellis further alleged that Koetter Woodworking, Inc. (“Koetter”) and International Wood, Inc. (“International”) purchased the unlawfully harvested timber. 

 

3.      A prehearing conference was scheduled and conducted on June 13, 2006, with all parties except International in attendance.[1]  Service was eventually effectuated upon International and a supplemental prehearing conference was scheduled and conducted on July 14, 2006, with all parties participating. 

 

[VOLUME 11, PAGE 239]

 

4.      A case management schedule was established for the purpose of allowing the parties to conduct discovery.  Following the parties’ unsuccessful participation in mediation and Koetter’s and International’s unsuccessful motions to dismiss, the parties exchanged final witness and exhibit lists and an administrative hearing was held on June 28, 2007.

 

5.      At the conclusion of Ellis’ case in chief, Koetter and International, moved for a judgment on the evidence, which motion was taken under advisement and will be ruled upon herein.

 

6.      This proceeding is controlled substantively by Ind.Code §§ 25-36.5-1 et seq. and 312 IAC 14-1 et seq., which authorizes a timber grower to institute an adjudicative proceeding against a timber buyer, as defined at Ind. Code § 25-36.5-1-1, or a timber cutter, as defined at 312 IAC 14-2-11, seeking actual damages to property resulting from the timber harvest and damages up to three times the actual stumpage value of the timber wrongfully harvested.  Ind. Code § 25-36.5-1-3.2.

 

7.      Procedurally, Ind. Code §§ 4-21.5-3 et seq., commonly referred to as the Administrative Orders and Procedures Act or AOPA, and administrative rules adopted by the Commission at 312 IAC 3-1 et seq. for the purpose of implementing AOPA in proceedings under its jurisdiction, will govern.

 

8.      The Commission is the ultimate authority for adjudicative proceedings under Ind.Code §§ 25-36.5-1 et seq.  312 IAC 14-1-2(d).

 

9.      The Commission is possessed of jurisdiction over the persons of the parties and the subject matter of the instant proceeding. 

 

 

FINDINGS OF FACT

 

10.  The Terrys had purchased a twenty-two (22) acre parcel of real property for the purpose of selling it on contract to Brading and Hortenberry.  Brading and Hortenberry were making monthly payments to the Terrys for the property.  Testimony of Brading, Testimony of Ann Terry, Testimony of Hortenberry. 

 

11.  Ellis owns eleven (11) acres situated on New Cut Road off of State Road 56 in Washington County, Indiana[2] that sits adjacent to the 22 acre parcel being sold by the Terrys to Brading and Hortenberry.  Testimony of Ellis, Testimony of Ann Terry.

 

12.  Brading acknowledged having harvested timber from Ellis’ property at the same time he harvested timber from the 22 acre parcel he and Hortenberry were purchasing from the Terrys.  Testimony of Brading.

 

[VOLUME 11, PAGE 240]

 

13.  No survey was completed at the time the Terrys purchased the 22 acre parcel and Brading completed no survey before he proceeded with the timber harvest.  Testimony of Brading.

 

14.  However, the 22 acre parcel as well as properties surrounding Ellis’ 11 acre parcel had been surveyed recently and both Brading and Ellis had observed boundary survey stakes on their respective parcels of property.  Testimony of Brading, Testimony of Ellis, Testimony of Randall Moser.

 

15.  Brading’s timber harvest from Ellis’ property was based upon an erroneous belief that Ellis’ property was a part of the 22 acre parcel he and Hortenberry were purchasing.  Testimony of Brading.

 

16.  Brading discovered his error regarding the property line location only after the timber had been harvested.  Testimony of Brading.

 

17.  The fact that Brading and Hortenberry had also obtained a septic system permit for the construction of a septic system in preparation for the placement of a $100,000.00 modular on the land later determined to belong to Ellis further bolsters Brading’s testimony that the harvest of Ellis’ trees occurred from a genuine belief that the trees were located on the land he and Hortenberry were purchasing. Testimony of Brading.  

 

18.  Brading accepted sole responsibility for the timber harvest indicating further that he personally rented the equipment necessary and was acted under directions from no one else.  Testimony of Brading.

 

19.  Hortenberry acknowledged receiving, endorsing and cashing check number 134514, dated February 18, 2005 in the amount of $4,737.95 issued by Koetter.  Hortenberry testified, and Brading confirmed, that Hortenberry’s endorsement of the check on behalf of Brading, was done with his permission.  Claimant’s Exhibit 1, Testimony of Brading, Testimony of Hortenberry.

 

20.  The Terrys acknowledged receipt of check number 21374 dated March 24, 2005 from International in the amount of $6,618.05 as payment for timber harvested.  Testimony of Ann Terry, Testimony of Raymond Terry. Ann Terry initially insisted that all of the timber associated with the payment was harvested from the Terrys’ property.  Upon further questioning she acknowledged her lack of knowledge as to the actual ownership of the timber sold to International.  Claimant’s Exhibit 2, Testimony of Ann Terry. 

 

[VOLUME 11, PAGE 241]

 

21.  According to Brading, the bulk of the proceeds of the timber sale had been conveyed to the Terrys as payment on the land contract.  Testimony of Brading.

 

22.  The Terrys received $2,100.00 of the proceeds associated with check number 134514 issued by Koetter and all of the proceeds of check number 21374 issued by International.  Testimony of Raymond Terry.

 

23.  The timber harvested by Brading was hauled to International and Koetter in or near March 2005 by Kenny Elliott (“Elliott”) and Ed Eiler (“Eiler”).  Testimony of Elliott, Testimony of Eiler.

 

24.  Elliott delivered logs that had been tagged in the field to Koetter and approximately “a month or two later” hauled four loads of logs to International.  Testimony of Elliott. Eiler, whose testimony was initially evasive, eventually acknowledged having hauled two loads of logs to Koetter from an area near New Cut Road off State Road 56 in Washington County.  Testimony of Eiler, Claimant’s Exhibit 3.

 

25.  Brading paid Elliott cash to haul the logs to Koetter.  International paid Elliott $700.00 for that delivery and deducted the hauling fee from the payment made to the Terrys.  Testimony of Elliott, Testimony of John Chapman, Claimant’s Exhibit 3.  Eiler testified that he hauled logs for Brading as a personal favor at no cost.  Considering Eiler’s evasive approach to his testimony, his contention that he hauled logs for no fee is questionable; however, no evidence to the contrary was presented.

 

26.  Elliott, who has been hauling timber, for approximately twenty years and has been working in the Washington County area for at least ten years, explained that Greg Thevenot (“Thevenot”), Director of Purchasing and Sales for Koetter, advised him that if he was in need of a load that Brading was looking for someone to haul some logs.  According to Elliott, Thevenot provided a general location where Brading’s logs could be picked up.    Testimony of Elliot, Testimony of Thevenot.

 

27.  When Elliott arrived in the location as provided by Thevenot, Brading was on site with a pile of logs that had already been cut and skidded to a gravel landing.  The logs he hauled to Koetter had been previously tagged indicating that Koetter had purchased them previously.  Testimony of Elliott.

 

28.  The fact that a veteran truck driver who has hauled logs in a general vicinity for ten years has developed a relationship with sawmill employees to the extent that the driver receives job referrals is not viewed as unusual. 

 

29.  Thevenot’s referral of Elliott to Brading for the purpose of hauling logs previously purchased by Koetter in no manner warrants the conclusion that Elliott was acting on behalf of Koetter.  This is especially true when Elliott took all direction from Brading and Brading was the individual who paid Elliott for hauling the logs.  Testimony of Elliott.

 

[VOLUME 11, PAGE 242]

 

30.  Within the logging industry, the tagging of logs in the field indicates that those logs have had already been selected by a particular purchaser.  Testimony of Elliott.

 

31.  At the time of Elliott’s arrival at Brading’s timber harvest site all timber harvesting had been completed.  Testimony of Elliott.

 

32.  Koetter’s tagging of certain logs before Elliott’s arrival leads to the logical conclusion that Koetter was on site before Elliott arrived but does not support a conclusion that Koetter had been on site before Brading had concluded his timber harvest or that Koetter had purchased standing timber that was being cut by Brading at Koetter’s direction. 

 

33.  While Eiler could not recall with certainty, the only evidence associated with the loads of logs Eiler hauled to Koetter tends to establish that these logs had not been tagged in the field, but were simply delivered to Koetter and identified by Eiler as belonging to Brading.   Testimony of Eiler.

 

34.  Koetter acknowledged purchasing three loads of logs from Brading in or around March 2005.  One load was hauled by Eiler while Elliott, using a truck owned by Baker Trucking, hauled the other two loads.  Testimony of James Nett (“Nett”), Testimony of Mike Baker (“Baker”), Testimony of Eiler, Testimony of Elliott.  Koetter customarily pays the seller for logs within a few days of delivery to the mill; however, Koetter did not pay any truck driver for hauling any logs associated with that transaction.  Testimony of Nett, Testimony of Elliott, Testimony of Eiler.

 

35.  Thevenot, Director of Log Purchasing and Sales, has never been to Ellis’ property located on New Cut Road and did not personally tag any logs at that location.  Thevenot assumed, but could not testify with certainty, that another of Koetter’s log buyers tagged logs at Brading’s timber site.  Testimony of Thevenot.

 

36.  Thevenot tagged only one load of logs after those logs had been delivered to Koetter’s yard in Salem, Indiana.  Thevenot was not present when those logs were delivered and he was unaware of the identity of the truck driver who delivered them.  In the normal course of business the truck driver delivering the logs will advise the yard of the seller’s identity and Koetter makes out a ticket that is used by Koetter’s log buyers to grade, measure and value the logs for purposes of processing payment for the logs.  Testimony of Thevenot.

 

37.  Thevenot has no involvement with the payments made to sellers for logs.  Testimony of Thevenot.

 

38.  Brad Foster (“Foster”), a timber buyer for Koetter, admitted having inspected timber cut by Brading after the logs had been laid out on the landing at Brading’s timber harvest site.   Testimony of Foster, Testimony of Brading. 

 

[VOLUME 11, PAGE 243]

 

39.  Foster denied having inspected or purchased standing timber.  Testimony of Foster.   

 

40.  Brading rejected a bid offered by Foster on the logs.  Consequently, the logs were not purchased on the day of Foster’s inspection and the logs were also not tagged that day.  Testimony of Foster.

 

41.  Logs are only tagged when purchased or upon arrival at the yard.  Testimony of Foster.

 

42.  The evidence is somewhat sketchy as it relates to Koetter’s tagging of certain logs before they were hauled by Elliott.  Thevenot and Foster both deny having tagged or purchased logs or standing timber from Brading in the field.  However, Elliott clearly recalled that certain logs he hauled for Brading had been tagged by Koetter, indicating that someone, on behalf of Koetter, purchased the logs in the field.  While this evidence presents a curiosity, the testimony of Elliott and employees of Koetter appeared forthright and non-evasive, providing no cause to question their credibility.[3]     

 

43.  John Chapman (“Chapman”), in March 2005 was employed by International. In the course of that employment, Chapman graded and measured logs and developed quotes for the purchase of timber.  Testimony of Chapman.

 

44.  Chapman, at the request of Brading and on behalf of International, visited the site of the timber harvest for the purpose of inspecting cut timber.  Testimony of Chapman.

 

45.  Brading’s timber harvesting had been completed at the time of Chapman’s visit and he observed no activities associated with the skidding or loading of any logs.  Brading was the only other person present during Chapman’s visit.  Testimony of Chapman, Testimony of Brading.

 

46.  Chapman did not go beyond where the logs had been laid out and was unaware of the location from which they had been harvested.  Testimony of Chapman.

 

47.  Following his inspection of the logs, Chapman telephoned Brading with a quote to purchase logs upon Brading’s delivery of the logs to the mill.  Testimony of Chapman.

 

48.  International’s practice was to pay for logs only upon the seller’s delivery of the logs to the mill.  All costs associated with the hauling was the seller’s responsibility; however, it was not unusual for International to pay the driver’s hauling fee and deduct that amount from the purchase amount paid to the seller.  Testimony of Chapman, Testimony of Elliott.   

 

[VOLUME 11, PAGE 244]

 

49.  Both Eiler and Elliott received all of direction from Brading while at the timber harvest site and the only driver who received payment, Elliott, was paid either by Brading or out of proceeds of the timber sale that would have otherwise been paid to the Terrys.  Neither Koetter, nor International paid Elliott or Eiler out of their own coffers.  Testimony of Eiler, Testimony of Chapman, Testimony of Stidham, Testimony of James Nett, Testimony of Thevenot.

 

50.  There exists no evidence that Elliott or Eiler were operating as agents or employees of Koetter or International or acting under the direction of any person except Brading. 

 

51.  Elliott acknowledged having backed his truck onto the gravel lane located on the property near the landing area to be loaded with the cut logs.  Testimony of Elliott.

 

52.  No evidence was presented to establish specifically that Elliott’s act of backing onto the gravel lane to the landing resulted in damage to Ellis’ property. 

 

53.  The only evidence available establishes that Eiler’s truck was loaded by Brading while the truck sat on the County Road.  Testimony of Eiler.

 

54.  Randall L. Moser (“Moser”), a consulting forester, viewed the Ellis’ property for the purpose of establishing the stumpage value of the timber harvested from that property.  Testimony of Moser.

 

55.  The survey stakes readily apparent on Ellis’ property were used in conjunction with a surveyor’s report by Moser to ascertain the boundaries of the Ellis and Terry properties.  Testimony of Ellis, Testimony of Moser.

 

56.  The primary landing area, to which the harvested timber had been skidded was located on Ellis’ property; however, evidence also indicated that a certain number of logs may have been loaded at the County Road as well.  Testimony of Moser. 

 

57.  Within the boundaries of Ellis’ eleven (11) acre property, seventy-six (76) stumps were identified.  As he proceeded to measure, identify the species of and tally each stump located, Moser marked each stump with blue paint to ensure that no duplication occurred within his calculations or report.  Testimony of Moser, Claimant’s Exhibit 4.

 

58.  The calculation of stumpage value was based upon the stumps identified, although Moser felt certain that some stumps were probably hidden under tree tops.  Testimony of Moser. 

 

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59.  The stumps identified by Moser included black, white and red oak, hickory, sugar and red maple, sassafras, ash, and poplar totaling 18,140 board feet. Based upon the estimated volume, species and grade, Moser calculated a stumpage value of $5,431.00 for the 76 trees harvested from Ellis’ property.  Testimony of Moser, Claimant’s Exhibit 4.    

 

60.  Large ruts caused by heavy equipment were visible throughout the properties owned by Ellis and the Terrys.  Testimony of Moser, Testimony of Ellis, Claimant’s Exhibit 8.

 

61.  Because the primary landing area was located on Ellis’ property, the skidding of a large number of the logs to that location caused a “disproportionate share” of the property damage to occur on Ellis’ property.  Testimony of Moser. 

 

62.  At no time was any evidence presented to establish or estimate the cost to repair the property damage associated with the ruts.  Testimony of Moser, Testimony of Ellis. 

 

63.  Moser was unaware of who purchased the timber and stated he could not determine “what came from where and have no idea where they went.”  Testimony of Moser. Even with a load receipt from both International and Koetter, Moser testified that he would be unable to determine whether Koetter or International purchased Ellis’ trees or the Brading and Hortenberry trees, or both.

 

64.  Based upon Brading’s belief that all of the trees harvested and logs sold had been cut from his and Hortenberry’s property, it may be reasonably inferred that the logs sold by Brading to Koetter and International included both theirs and Ellis’ logs.  

 

65.  Ellis observed no person cut timber or skid timber involved in the instant proceeding.  Testimony of Ellis. 

 

66.  Ellis offered no evidence to prove that Koetter or International had purchased standing timber or were otherwise involved in the timber harvest completed by Brading.

 

67.  Ellis testified that he had no evidence that Brading was working as an employee or agent of Koetter or International or that Brading maintained any relationship of any kind with Koetter or International at the time he harvested trees off Ellis’ property.

 

68.  Ellis acknowledged that the only evidence in existence linking Koetter and International to the timber harvest is the fact that they purchased the timber from Brading.  Testimony of Ellis.   

 

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KOETTER’S AND INTERNATIONAL’ MOTION FOR JUDGMENT ON THE EVIDENCE

 

69.  At the conclusion of Ellis’ case in chief, Respondents, Koetter and International, joined in a motion for judgment on the evidence as specified within the Indiana Rules of Trial Procedure, Trial Rule 50. 

 

70.  The administrative law judge took the motion under advisement and requested that all Respondents proceed with the presentation of evidence.  However, only that evidence  presented during Ellis’ case in chief is relevant to a determination of Koetter’s and International’s motion.

 

71.  Upon proper motion Trial Rule 50 obligates the administrative law judge to withdraw from consideration those issues upon which a Claimant has failed to carry its burden of going forward with evidence.  Save Our Rivers v. DNR & Aztar Indiana Gaming Corporation, 7 CADDNAR 115, (1995), Stanton v. Star Lite Leasing, Inc. a/k/a Starlight Leasing, Inc. and DNR, 10 CADDNAR 244, (2006).

 

72.  Ellis proved only that Koetter and International purchased logs from Brading. 

 

73.  Ellis acknowledged that there exists no proof that Koetter or International purchased standing timber or that Brading was acting as an agent or employee of Koetter or International or that Koetter or International directed Bradings timber harvest activities. 

 

74.  The sole evidence presented by Ellis establishes that Brading, at his own direction selected trees for harvest and only after the timber harvest was completed did Brading solicit bids from Koetter and International that ultimately lead to their purchase of logs. 

 

75.  Ellis has simply failed to go forward with evidence upon which it may reasonably be concluded that Koetter or International are liable for damages associated with the timber harvest at issue herein. 

 

76.  Ellis complaint with respect to Koetter and International, should be dismissed.

 

 

CONCLUSIONS OF LAW

 

77.  Ind. Code §§ 25-36.5-1 et seq. authorizes a timber grower to commence a proceeding against a timber buyer or timber cutter when timber is acquired from the timber grower without compensation.  The proceeding may seek damages in the amount of three times the stumpage value of the timber wrongfully harvested and damages in compensation for actual property damage associated with the wrongful timber harvest.

 

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78.  A “timber grower” is “the owner, tenant, or operator of land in this state who has an interest in, or is entitled to receive any part of the proceeds from, the sale of timber grown in this state and includes persons exercising lawful authority to sell timber for a timber grower.”  Ind. Code § 25-36.5-1-1 and 312 IAC 14-2-12.

 

79.  A “timber cutter” is a “person who cuts timber but who is not a timber buyer.”  Ind. Code § 25-36.5-1-3.2 and 312 IAC 14-2-11

 

80.  A “timber buyer” is a “person engaged in the business of buying timber from timber growers for sawing into lumber, processing, or resale, but does not include a person who occasionally purchases timber for sawing or processing for his on use and not for resale.”  Ind. Code § 25-36.5-1-1 and 312 IAC 14-2-10.

 

81.  Ellis is a timber grower, while Brading, for purposes of this proceeding, is a timber cutter.

 

82.  Brading admitted having harvested trees he later determined to be the property of Ellis without compensation to Ellis for timber harvested.

 

83.  Seventy-six (76) stumps were identified on Ellis’ property as having been harvested by Brading. 

 

84.   The stumpage value of the timber associated with the 76 stumps is $5,431.00.

 

85.  The amount of potential liability for the wrongfully harvested timber, based upon the imposition of three times Moser’s stumpage value determination, equals $16,293.00.

 

86.  The Commission has previously determined that it possesses discretion to demand less than the full impact of the treble-damages clause, particularly in situations in which the timber cutter or timber buyer acts will all due diligence but, as a result of misdirection or interference of another person is caused to trespass.  Schneider v. Grosnickle & Cincinnati Insurance Company, 9 CADDNAR 180, (2004).

 

87.  The purpose of the treble damages provision contained within Ind. Code § 25-36.5-1-3.2 is to enforce against the careless felling of trees through the negligent actions of timber buyers and timber cutters.  Id, citing Wright v. Reuss, 434 N.E.2d 925, (Ind. App. 1982).  Timber buyers and timber cutters are simply not allowed to defend against the imposition of treble damages on the basis of mistake of fact.  Id citing Beeman v. Marling, 646 N.E.2d 382 (Ind. App. 1995).

 

88.  It is also not required that a timber grower establish that the wrongful timber harvest was the result of maliciousness on the part of the timber buyer or timber cutter.  Id and Gallien v. Sloan Logging, Pendley & Zurich N. Am., 9 CADDNAR 40 (2002).

 

[VOLUME 11, PAGE 248]

 

89.  Ellis’ failure to prove the costs to repair the property damage associated with the timber harvest frustrates any possibility of awarding additional compensation for the ruts other actual property damage.

 

90.  It is not questioned that Brading believed Ellis’ eleven (11) acre parcel of property was part of the real property he and Hortenberry were purchasing on contract from the Terrys.

 

91.  It is clear that Brading’s actions in harvesting timber later determined to be Ellis’ was not a consequence of maliciousness.

 

92.  However, Brading did nothing to affirmatively identify the property boundaries of the real property he was purchasing until after he had harvested the timber.

 

93.  Where a timber buyer or timber cutter has either failed to take affirmative steps to identify property boundaries or has encroached upon property beyond an established boundary line an award to the Claimant of three times the stumpage value of the timber is appropriate.  Schneider, supra; Gallien, supra; Martin v. Curtis & Teague, 11 CADDNAR 53, (2007).

 

94.  Brading, as the timber cutter, is liable to Ellis, the timber grower, for three times the stumpage value of the timber wrongfully harvested, or $16,293.00. 

 

95.  However, a landowner or person with an ownership interest in property who ultimately shares in the proceeds of a wrongful timber harvest is also within a class of persons who may be liable to a timber grower for the wrongful harvest of timber.  Pike Lumber Co., Inc. v. Cruse Timber, et al., 10 CADDNAR 28 (2005).

 

96.  It is not disputed that the Terrys owned the 22 acre parcel of property adjacent to Ellis and were selling it on contract to Brading and Hortenberry.

 

97.  It is also not disputed that the Terrys received proceeds of Brading’s sale of the timber he harvested.

 

98.  Brading’s testimony that the Terrys received the proceeds of the timber sale as payment on the land sale contract between himself and Hortenberry and the Terrys is also not disputed.

 

99.  Consequently, while the monies paid to the Terrys were earned by Brading and Hortenberry from the sale of timber, the Terrys are not true recipients of proceeds of a wrongful timber harvest, but are the recipients of land sale contract payments.

 

100.          Thus the Terrys are not liable to Ellis for damages associated with the timber harvest.

 

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101.          Hortenberry, like Brading, as the real recipients of the proceeds of the wrongful timber harvest, earned monies from the sale of the timber necessary to pay on their land sale contract with the Terrys.  As a result, Hortenberry shared with Brading the proceeds of the wrongful timber harvest and is liable to Ellis for damages associated therewith.  Pike Lumber Co., supra.

 

102.          The treble damages clause of Ind. Code § 25-36.5-1-3.2 is a punitive statutory provision, which must be strictly construed.  Pike Lumber Co., supra. 

 

103.          While Hortenberry is liable to Ellis as a landowner who shared in the proceeds of the wrongful timber harvest, there exists no evidence to suggest that she was actually involved in the timber harvest such that she should be liable for punitive treble damages.  Id.

 

104.          Hortenberry’s liability is limited to the actual stumpage value of $5,431.00, which liability she shares jointly and severally with Brading.