CADDNAR

[CITE: Karlix v. Collier, et al., 11 CADDNAR 426 (2008)]

 

[VOLUME 11, PAGE 426]

 

Cause #07-228F

Caption: Karlix v. Collier, et al.

Administrative Law Judge: Jensen

Attorneys: Karlix (pro se); South (Collier); Coffey (Shrake; Griffith); Zeigler (pro se)  

Date: October 7, 2008  

 

 

FINAL ORDER

 

47. Karlix’s claim of action is hereby dismissed in its entirety.

 

 

FINDINGS OF FACT AND CONCLUSIONS OF LAW

  

Procedural Summary:

 

1.      On November 27, 2007, Michael A. Karlix (Karlix) filed correspondence with the Natural Resources Commission (Commission) alleging that Ray Allen Collier (Collier) had, on two separate occasions, harvested timber from his property without permission and had further failed to make payment for the timber wrongfully harvested. 

 

2.      Through his correspondence Karlix alleges that timber was harvested by Collier in 2003 and again in 2005 and he seeks compensation in the amount of $600.00 for each occurrence.  Karlix further seeks compensation of $885.00 for a property survey, and attorney fees of $200.00.  Karlix’s total claim for damages equals $4,685.00.

 

3.      A prehearing conference was conducted on January 3, 2008 at which time both Karlix and Collier appeared in person.  Karlix has, at all times, acted pro se, while Collier ultimately retained the services of counsel, Elizabeth A. South.

 

4.      Collier, through his counsel, moved to join John B. Griffith (Griffith), Cindy Shrake (Shrake) and Paul Ziegler (Ziegler), who are owners of real property lying adjacent to Karlix’s property from which timber was harvested by Collier, as parties to the instant proceeding.

 

5.      Following a grant of Collier’s motion for joinder, the three newly joined parties were served with notice and appeared for telephone status conferences. Shrake and Griffith retained the services of counsel, Dale S. Coffey, while Ziegler has continued participation on a pro se basis.

 

6.      The parties were allowed until August 22, 2008 to file motions for summary judgment.

 

 

[VOLUME 11, PAGE 427]

 

7.      Ziegler filed a motion to dismiss on July 18, 2008.  Shrake and Griffith filed their motion for summary judgment on August 13, 2008 followed by Collier’s motion on August 19, 2008 to join Shrake’s and Griffith’s motion for summary judgment as well as his own summary judgment motion pertaining to Karlix’s claim for compensation of attorney fees and litigation expenses.

 

8.      Parties adverse to Ziegler’s motion to dismiss were afforded until August 25^th within which to file responsive pleadings.

 

9.      Karlix filed his Response to both Ziegler’s motion to dismiss as well as Collier’s, Shrake’s and Griffith’s motions for summary judgment on August 25, 2008.

 

10.  The moving parties were allowed until September 9, 2008 within which to file reply briefs, which opportunity was accepted by Shrake and Griffith, who filed their reply on September 8, 2008.

 

11.  Essentially, the motions for summary judgment filed by Shrake and Griffith and joined by Collier assert that Karlix’s claim is barred by the statute of limitations.

 

12.  Ziegler maintains in his motion to dismiss that he should be dismissed from the instant proceeding for the reason that he did not share in any profits associated with the timber harvested by Collier from his property on the occasions complained of by Karlix.  Collier, in addition to maintaining that Karlix’s complaint is barred by the statute of limitations, also maintains and seeks summary judgment on the issue of attorney fees and litigation expenses.

 

13.  Karlix filed his correspondence based upon Indiana Code §§ 25-36.5-1 et seq., commonly referred to as the Timber Buyers Statute, and 312 IAC 14-1 et seq.

 

14.  The Natural Resources Commission (Commission) is the “ultimate authority,” as that term is defined at Indiana Code § 4-21.5-1-15, for proceedings involving the Timber Buyers Statute.  312 IAC 14-1-2.

 

15.  The NRC possesses both subject matter jurisdiction as well as jurisdiction over the persons of the parties.

 

 

Findings of Relevant Facts and Conclusions of Law:

 

16.  Based upon Karlix’s allegations the timber harvests complained of occurred in “the fall of 2003” and “around August of 2005”.

 

17.  Karlix filed his correspondence seeking compensation under I.C. § 25-36.5-1 et seq. on November 27, 2007.

 

[VOLUME 11, PAGE 428]

 

18.  A period of approximately four (4) years elapsed between the first complained of occurrence and over two (2) years has passed since the second incident complained of by Karlix.

 

19.  Neither the Timber Buyers Statute, nor associated administrative rules, provides a specific statute of limitations for such actions.  Furthermore, this is a matter of first impression for the Commission.[1]

 

20.  Respondents Collier, Shrake and Griffith are correct in their argument that the “applicable statute of limitations is ascertained by identifying the nature or substance of the cause of action.”  Shriner v. Sheehan, 773 N.E.2d 833, 845, (Ind. Ct. App. 2002).

 

21.  Complicating the matter in this instance is the well settled principle that “growing trees are a part of the real estate on which they stand until they are severed.”  McKenna v. City of Fort Wayne, 429 N.E.2d 662, 666, (Ind. App., 1981), citing Owens v. Lewis, 46 Ind. 488, (Ind., 1874).  Upon severance of the tree from the real estate, the resulting timber is merely personal property.   Brink v. Warner, 145 N.E.2d 318.

 

22.  Whether the nature or substance of a cause of action for the wrongful harvest of timber involves statutes of limitations applicable to real property or to personal property is, therefore, not elementary.

 

23.  Indiana Code § 34-11-2-7 states, in pertinent part, as follows:

The following actions must be commenced within six (6) years after the cause of action accrues:

        …..
        (3) Actions for injuries to property other than personal property, damages for detention of personal property and for recovering possession of personal property.
        …..

 

24.  Therefore, if under the Timber Buyers Statute the unlawfully harvested timber is viewed as a part of the real property, the applicable statute of limitations would be six (6) years.

 

25.  However, “an action for … injury to personal property… must be commenced within two years after the cause of action accrues.”  Indiana Code § 34-11-2-4.

 

[VOLUME 11, PAGE 429]

 

26.  If, as argued by Collier, Shrake and Griffith, the unlawfully harvested timber is characterized as personal property, the applicable statute of limitations would be two (2) years.

 

27.  The Timber Buyers Statute provides for two distinct types of injuries.  First it authorizes an award of “damages in compensation for damage actually arising from the wrongful activities of a timber buyer or timber cutter.” Indiana Code 25-36.5-1-3.2(f)(1).  Second it provides for the award of “damages equal to three (3) times the stumpage value of any timber that is wrongfully cut or appropriated without payment.” Indiana Code 25-36.5-1-3.2(f)(2).

 

28.  With respect to the former type of damages, the NRC has previously awarded amounts necessary to return land to its original condition by eliminating ruts and tire tracks, removing tree tops from streambeds, replanting and reseeding and for residual tree damage, all of which are damages to real property. See Rose Acre Farms, Inc. v. Ault and Curry, 8 CADDNAR 138, (1999).

 

29.  The latter type of damage is strictly related to the trees wrongfully harvested.

  

30.  The Timber Buyers Statute expressly provides for a timber cutter or timber buyer to compensate a timber grower for wrongfully cut or acquired timber in an amount “equal to the value of the timber as determined under IC 26-1-2.” Indiana Code § 25-36.5-1-3.2 (emphasis added).

 

31.  Indiana Code §§ 26-1-2 et seq. is commonly referred to as the Uniform Commercial Code, Sales.

 

32.  Indiana Code § 26-1-2-102 specifies that “unless the context otherwise requires, IC 26-1-2 applies to transactions in goods…”

 

33.  “‘Goods’ means ... growing crops and other identified things attached to realty as described in the section on goods to be severed from realty (IC 26-1-2-107).  Indiana Code 26-1-2-105.

 

34.   “A contract for the sale apart from the land of growing crops or other things attached to realty and capable of severance without harm thereto …or of timber to be cut is a contract for the sale of goods within IC 26-1-2 whether the subject matter is to be severed by the buyer or by the seller even though it forms part of the realty at the time of contracting, and the parties can by identification effect a present sale before severance.”  Indiana Code § 26-1-2-107.

 

35.  “Goods” are personal property.

 

[VOLUME 11, PAGE 430]

 

36.  The possibility that a timber buyer or timber cutter who wrongfully acquires timber may avoid the commencement of a proceeding such as the one at bar by paying the timber grower the value of the timber as “goods” or personalty clearly reflects the General Assembly’s view of even wrongfully cut timber as personal property… not real estate.

 

37.  It is concluded that Indiana Code § 34-11-2-7(3), which applies a six (6) year statute of limitations to actions involving real property is inapplicable to damages sought pursuant to Indiana Code § 25-36.5-1-2.3(f)(2) relating to wrongfully harvested timber.

 

38.  Actions for “injury to personal property” are required to be commenced within two (2) years.

 

39.  Therefore it is concluded that a two (2) year statute of limitations is applicable to the damages relating to the trees Karlix alleges to have been harvested by Collier.

 

40.  Karlix’s correspondence was filed with the Commission over two (2) years after the last incident allegedly occurred.

 

41.  It is inconsequential that Karlix was in communication with the Department of Natural Resources or its staff as those communications did not initiate a proceeding governed by Indiana Code §§ 4-21.5 et seq. and 312 IAC 3-1.

 

42.  Statutes of limitations must be strictly adhered to.

 

43.  Ziegler, who did not expressly join in Shrake’s and Griffith’s motion for summary judgment, is nonetheless made a beneficiary of that motion.

 

44.  Karlix has not sought compensation for damages to real property related to the timber harvest.

 

45.  Not only is the recovery of damages sought by Karlix in the sum of $885.00 for survey fees and $200.00 for attorney fees barred by the two (2) year statute of limitations, but they are also barred for the mere reason that the Commission is without legal authority to award such fees.  Booker v. Mason and Shorter, 10 CADDNAR 1 (2005).

 

46.  Given that the instant proceeding is barred by the statute of limitations, there remains no need to address Ziegler’s motion to dismiss.