[CITE: Branham v. Elkins, Jr., et al., 13 CADDNAR 208 (2013)
[VOLUME 13, PAGE 208]
Cause #: 10-058F
Caption: Branham v. Elkins, Jr., et al.
Administrative Law Judge: Jensen
Attorneys: Lorenz (Branham); Lansberry (Elkins); Watts (Jordan)
Date: May 1, 2013
[See Editor’s note at end of this document regarding change in the decision’s original format.]
115. The Branhams are awarded an administrative judgment against Jordan in the total amount of $5,000.00.
116. This administrative judgment addresses all issues of damage and responsibility as between the Branhams and Jordan 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. The instant proceeding was initiated by Michael E. Branham and Debra J. Branham (collectively referred to as “the Branhams”), on March 11, 2010 through the filing of their “Complaint for Wrongful Removal of Timber and Issuance of Notice” (“Complaint”).
2. The Branhams’ Complaint was amended on April 30, 2010 following a prehearing conference conducted on April 23, 2010, to add Betty Jordan (“Jordan”) as a Respondent to the instant proceeding. The Branhams’ amended complaint alleges that Jordan is an adjacent landowner who should answer for “her involvement in her sale of the wrongfully cut timber” stating further a prayer that Jordan and Elkins “be required to compensate the Claimants for the damage resulting from the wrongful cutting, acquisition and removal of said timber, plus damages equal to three (3) times the stumpage value of the timber wrongfully cut, acquired and removed…”
3. On April 6, 2011, the administrative law judge ordered the parties to engage in mediation.
4. Following mediation, on December 21, 2011, the Branhams sought once again to amend their complaint to identify Fidelity and Deposit Company of Maryland (“Fidelity”) as a necessary party to the instant proceeding. The Branhams’ second amended complaint identifies Fidelity as the entity issuing surety bond to Elkins as required by Indiana Code § 25-36.5-1-3 and alleges that the joinder of Fidelity is necessary to “ensure that the surety company performs on the settlement reached during mediation…”
5. The Branhams have been represented throughout the pendency of this proceeding by Richard W. Lorenz of Hickam & Lorenz, P.C. Elkins was represented by Kyle A. Lansberry and Theresa Parish of Lewis Wagner, LLP. Counsel, Patricia Schroder, represented Fidelity and Jordan was represented by Paul J. Watts of Watts Law Office, P.C.
6. The instant proceeding was initiated pursuant to Indiana Code §§ 25-36.5-1-3.2 and 312 IAC 14-6-1(a) and is governed procedurally by Indiana Code §§ 4-21.5 and 312 IAC 3.
7. The Commission is the ultimate authority. 312 IAC 14-1-2(d).
8. The Commission possesses jurisdiction over the subject matter of the instant proceeding as well as the persons of the parties.
9. The instant judgment relates solely to the remaining issues existing between the Branhams and Jordan.
SETTLEMENT OF ISSUES AS BETWEEN THE BRANHAMS, ELIKINS AND FIDELITY:
10. A “Stipulated Judgment” was executed by and between the Branhams, Elkins and Fidelity and accepted by the Commission on July 2, 2012.
11. Pursuant to the Stipulated Judgment, the Branhams are to be compensated the sum of $10,000.00 plus $200.00 per month for a period of five years by Elkins. In addition, the Branhams will receive compensation of $15,000.00 from Fidelity.
12. The total compensation the Branhams will receive through the Stipulated Judgment from Elkins and Fidelity, combined, is $37,000.00.
13. The “Stipulated Judgment” expressly states that the dispute existing between the Branhams and Jordan was not resolved.
RULING ON OBJECTION PREVIOUSLY TAKEN UNDER ADVISEMENT:
14. During the administrative hearing Mr. Watts, on behalf of Jordan, objected to the relevance of evidence relating to the Branhams’ property damage and their loss of value associated with the timber harvest. Mr. Watts’ stated his belief that the Amended Complaint filed by the Branhams against Jordan pertained solely to “the five thousand dollar escrow” resulting from Jordan’s attempts to mitigate damages by selling logs remaining on her property after Elkins logging activities were halted by law enforcement authorities.
15. Mr. Lorenz, on behalf of the Branhams, disagreed indicating that the complaint against Jordan alleged that the matter at issue is the total damages to the Branhams resulting from Jordan’s contractual association with Elkins.
16. Mr. Watt’s objection was taken under advisement in order to appropriately review the pleadings following the conclusion of the administrative hearing. However, the evidence to which Mr. Watts objected was preliminarily admitted in order to avoid the necessity to bifurcate the administrative hearing.
17. The administrative law judge notes that the pleadings must place Jordan on notice as to the allegations against which she is required to offer a defense. Bieda v. B & R Development and DNR, 9 CADDNAR 1, (2001), citing L.G. Balfour Co. v. Federak Trade Comm’n, 442 F.2d 1, 19, (7th Cir. 1971).
18. The Branhams’ “Amended Complaint for Wrongful Removal of Timber and Issuance of Notice” filed on April 30, 2010 identifies Jordan as a Respondent and calls for Jordan “to answer as to her involvement in her sale of the wrongfully cut timber…” and alleges that the “Respondents [Elkins and Jordan] acquired the timber in question wrongfully and with a contract for the same”. (emphasis added). Finally, the amended complaint alleges as follows:
That as a result of the wrongful cutting and removal of said timber, the Claimants have suffered damages actually resulting from the wrongful cutting, acquisition and removal of the timber in questions by the Respondents [Elkins and Jordan] plus a loss of stumpage value of the timber wrongfully cut and appropriated without payment for which the Claimants are entitled to three times the value thereof…
That an order be issued finding that the Respondents [Elkins and Jordan] wrongfully cut, acquired and removed timber owned by the Claimants from their real estate without any permit, lease or contract to do so; that no payment was made to the Claimants for the damage resulting for the wrongful cutting, acquisition and removal of said timber; and that Respondents [Elkins and Jordan] be required to compensate the Claimants for the damage resulting from the wrongful cutting, acquisition and removal of said timber, plus damages equal to three (3) times the stumpage value of the timber wrongfully cut, acquired and removed…
19. It is the conclusion of the administrative law judge that Mr. Watts’ objection on behalf of Jordan be overruled.
[VOLUME 13, PAGE 209]
FINDINGS OF FACT AND CONCLUSIONS OF LAW:
A. Jordan’s Liability To The Branhams With Respect To The Activities Of Elkins
20. Jordan owns multiple parcels of property near the Branhams property. Two of Jordan’s parcels of property adjoin the Branhams’ 31.93 acres located in Section 34, Owen County, Indiana. Jordan owns one parcel of property adjoining the Branhams’ property to the north (hereinafter referred to as “Jordan’s North Field”) and another parcel of property adjoining the Branhams’ property to the east. (hereinafter referred to as “Jordan’s East Field”) Testimony of Mr. Branham, Claimant’s Exhibit 22, Respondent’s Exhibit A.
21. Jordan entered into a “Standing Timber Contract” (“Contract”) dated January 12, 2009 with Elkins. The Contract specified as follows:
The Seller(s) hereby agrees to sell all of the usable timber (trees) 16 inches and larger on the stump at the cutting height, on the above described property.
Claimant’s Exhibit 2.
22. The Contract specifies the location from which the timber was sold by Jordan as follows:
Location: Sec 27 – 34 – 28 Taylor twp. Owen County
23. The evidence is clear that that while Jordan may own parcels in each of the Sections identified in the contract, Jordan does not own the entirety of Sections 27, 34 and 28. Claimant’s Exhibits 1 & 22, Respondent’s Exhibit A, Testimony of Mr. Branham & Jordan.
24. Jordan’s recollection of events leading to the execution of the Contract is clear and certain.
25. Jordan’s initial interaction with Elkins occurred when Elkins contacted Jordan by telephone seeking to purchase a small amount of timber off a specific parcel of her property to “complete a load”. Jordan declined to sell timber from the parcel of property Elkins described because the parcel of property was included in the Department of Natural Resources administered Classified Forest Program. Testimony of Jordan.
26. Elkins persisted, suggesting the purchase of timber from a different parcel of Jordan’s property. Jordan explained to Elkins that she did not believe there was much, if any, timber on the second parcel Elkins referred to but she agreed to let him look at the property.
27. Within a short period of time, Elkins again telephoned Jordan to advise her that there was sufficient timber on the second parcel to fill the order. During that telephone conversation Jordan and Elkins verbally agreed upon a purchase price of $3,000 for the timber Elkins described. Id.
28. Elkins appeared at Jordan’s home and provided her a $20.00 deposit on the contract and presented her with the contract for execution. Jordan did not read the terms of the contract; she simply signed it “because we had already made the deal on the telephone.” In signing the Contract, Jordan acknowledged receipt of a $20.00 cash deposit on the total purchase price of $3,000.00 leaving a balance due to Jordan of $2,980.00. Claimant’s Exhibit 2. Elkins later paid the remaining balance “in cash”. Testimony of Jordan.
29. The parcels of property where Elkins conducted his logging activities were within the Sections identified on the Contract, but were inconsistent with the location from which Jordan verbally agreed to allow Elkins to harvest trees. Id, Claimant’s Exhibit 2.
30. Neither the Branhams, nor Jordan lives on the property they each own respectively from which Elkins harvested the timber. Testimony of Mr. Branham & Jordan
31. Elkins’ logging activities commenced when Jordan was in Kentucky caring for her mother who was of failing health. Testimony of Jordan.
32. Donnie Minnick (“Minnick”) has farmed Jordan’s agricultural property for the past 10 to 12 years and is familiar with Jordan’s property boundaries. Testimony of Jordan & Minnick.
33. On or near February 22, 2009, Minnick contacted Jordan in Kentucky to notify her about Elkins logging activities, including the fact that Elkins was harvesting trees from Jordan’s property registered with the Classified Forest Program and from the adjoining property owned by the Branhams. Testimony of Minnick.
34. Coincidentally, on the same date Minnick discovered Elkins’ activities, Ruthie Speas (“Speas”), following a conversation with her father Raymond Ward (“Ward”), notified the Branhams of the timber cutting occurring on their property. Testimony of Mr. Branham, Speas & Ward.
35. Upon discovering the logging activities, Minnick immediately notified the timber cutters of his certainty that logging activities should not be occurring in the areas where they were working. The cutters ignored Minnick. Testimony of Minnick.
36. After being notified of the situation by Speas, Mr. Branham traveled to the location where he met and spoke to Minnick along the side of the county road. Mr. Branham contacted the Owen County Sheriff’s Department and deputies halted Elkins’ logging activities. Testimony of Mr. Branham & Minnick.
37. The Branhams were not in the market to sell timber and did not authorize the harvest of timber from their property.
38. A few days after Elkins’ activities were discovered, Jordan, Mr. Branham, Elkins, Minnick, Conservation Officer Dale Clark (“Clark”) and others met in the office of Mr. Watts to discuss the timber harvest and the compensation owed by Elkins to Jordan and Branham. An audio recording of this meeting (hereinafter referred to as “Clark Meeting”) was made by Clark. Testimony of Jordan, Claimant’s Exhibit 26.
39. The audio recording of the Clark Meeting contains hearsay statements of Elkins and Conservation Officer Dale Clark. Pursuant to I.C. 4-21.5-3-26 an administrative law judge “…may admit hearsay evidence. If not objected to, the hearsay evidence may form the basis for an order.” The audio recording was admitted into evidence by agreement of the Branhams and Jordan, thus no objection was offered.
[VOLUME 13, PAGE 210]
40. Before Elkins’ logging activities ceased, several loads of logs had been hauled from the site. Testimony of Ward & Mr. Branham, Claimant’s Exhibit 26. Ward, who at the time was staying at a property within view of the logging activities but who was frequently away from home, testified that he observed four or five loads of logs being hauled from the site. Elkins stated during the Clark Meeting that 12 loads of logs from this site had been sold to Pingleton Lumber Company (“Pingleton”) in Greencastle. Claimant’s Exhibit 26. During the administrative hearing, Mr. Branham testified that Clark had informed him that 17 loads of logs taken from the Branhams’ and Jordan’s properties were sold by Elkins to Pingleton. It is noted that during the Clark Meeting Mr. Branham stated that it was Speas who informed him she had counted 17 loads of logs being hauled from the site. However, during her testimony, Speas testified that she did not see any logs being hauled from the site. In any event it is clear from Elkins own admission that 12 loads of logs had been hauled from the site before the logging activities had been halted.
41. The evidence reveals that a small number, approximately 12 – 15 trees, had been cut off of the southwest wooded corner of Jordan’s East Field. Testimony of Mr. Branham.
42. The Branhams offered no evidence as to the actual number of logs sold to Pingleton. There is additionally no evidence as to the amounts paid to Elkins by Pingleton. The Branhams offered no evidence regarding the total number of stumps identified on Jordan’s property or the stumpage or other value of the timber harvested from Jordan’s property.
43. The $3,000.00 payment Jordan received from Elkins pursuant to the Contract was for timber. Testimony of Jordan.
44. Jordan initiated a civil action in the Owen Circuit Court against Elkins alleging trespass, theft and fraud that was resolved through a Stipulated Judgment by which Elkins agreed to compensate Jordan in the sum of $25,500.00. There is no evidence as to the portion of the judgment attributed to the value of timber, regardless of the source of the timber. Id.
45. Duane McCoy (“McCoy”), the Timber Buyer Licensing Forester with 16 years of experience with the Department of Natural Resources Division of Forestry, holding a Masters degree in Forest Management from Oregon State University, appraised the timber that had been harvested from the Branhams’ property. McCoy’s appraisal is based upon the identification of 150 stumps on the Branhams’ property from tree species including Sugar Maple, Tulip Poplar, White and Red Oak, Black Walnut, Sycamore, Black Cherry and Red Maple. Testimony of McCoy, Claimant’s Exhibit 23.
46. McCoy’s estimation that the trees harvested from the Branhams’ property contained 41,684 board feet of timber and had a total stumpage value of $30,967.22 is not disputed and is accepted as accurate. Id.
47. Significant damage was done to the Branhams’ boundary fence as a result of the logging activities. In some places the fence had been cut and in other places the fence had simply been run over and smashed into the ground. The cost to replace the fence is estimated to be $12,000.00. Testimony of Mr. Branham.
48. Mr. Branham further testified that tree tops, ruts and other land damage had been done to his property as a result of the timber harvest. The appropriate clean up, land reparation and erosion prevention, which will require the use of a small bulldozer, is estimated to cost an additional $12,000.00.
49. Elkins was also subjected to criminal prosecution in association with the events underlying this proceeding. Id.
50. According to documents submitted to the prosecuting attorney by Mr. Lorenz on behalf of the Branhams, the total restitution sought from Elkins was $43,525.00, which accounted for $31,000.00 for the value of timber and $12,525.00 for property damage. Id. Ultimately, Elkins was ordered as part of his acceptance of a plea agreement to make restitution to the Branhams in the amount of $43,525.00.
51. It is noted that the total damages the Branhams seek from Jordan through the instant proceeding is approximately $12,000.00 greater than what the Branhams sought from Elkins in restitution through the criminal prosecution. No explanation was offered for this discrepancy.
52. There being no evidence that Jordan was individually responsible for damages to the Branhams’ property, it is unreasonable to allow the Branhams to seek from Jordan compensatory damages that were not sought from Elkins.
53. “An owner of land adjacent to the land from which the timber was cut” who has a relationship to the subject of the complaint is a person proper to be joined to a proceeding initiated under I.C. 25-36.5-1. I.C. 25-36.5-1-3.2(e), 312 IAC 14-6-4, Goldasich v. Hites, et al., 11 CADDNAR 165, (2007).
54. It is not disputed that Jordan entered into a contract with Elkins for the harvest of timber placing her in relationship to the subject of the complaint and for this reason the Branhams may maintain their complaint for compensation against Jordan.
55. Pursuant to I.C. 25-36.5-1-3.2(f), the Branhams are authorized to seek:
(1) Damages in compensation for damages actually resulting from the wrongful activities of a timber buyer or timber cutter.
(2) Damages equal to three (3) times the stumpage value of any timber that is wrongfully cut or appropriated without payment.
56. “The Commission has consistently held that a timber buyer must exercise due diligence, under the Timber Buyers Act, in ascertaining that the person with whom he contracts to purchase timber is the owner of land from which timber is to be harvested.” Goldasich, supra, citing Beeman v. Pendley & Zurich N. Amer., 9 Caddnar 53, 56 (2002) and Pike Lumber Co., Inc. v. Cruse Timber, et al., 10 Caddnar 28 (2005).
57. “The purpose of the treble-damages clause is ‘to insure that timber buyers will exercise care in the cutting of timber and to protect landowners from careless felling of their timber.’” McClure v. Perry & Richardson, 13 CADDNAR 96, (2013) citing Wright v. Reuss, 434 N.E.2d 925, 929.
58. Because the Branhams have entered into the Stipulated Judgment with Elkins, in this instance it is the action or inaction of Jordan, the adjacent landowner, and not the action of Elkins, the timber buyer that is at issue.
[VOLUME 13, PAGE 211]
59. Liability of an adjacent landowner is commonly found where the landowner has misled a timber buyer through the misidentification of property boundaries or misrepresentation of property ownership. Goldasich, supra; McClure, supra; Martin v. Curtis & Teague, 11 CADDNAR 53, (2007). Liability may also be established if it is determined that the adjacent landowner otherwise shared in the proceeds of a timber buyer’s wrongful timber harvest.
60. The Branhams have not proven that Jordan misidentified any property boundary lines or that she misrepresented the ownership of the property from which Elkins harvested the timber. In fact, the evidence indicates that Jordan fully described the parcel of property from which she verbally authorized Elkins to harvest timber and made inquiries of Elkins to insure that he had evaluated the correct parcel of property and intended to conduct his logging activities on the parcel of property Jordan identified. Testimony of Jordan, Claimant’s Exhibit 26. The evidence further indicates that Jordan clearly refused to allow Elkins to harvest timber off her property located adjacent to the Branhams’ property because that property was in the Classified Forest Program. Id.
61. Elkins, of his own accord, harvested timber in contravention of Jordan’s directives.
62. The Branhams maintain instead that Jordan carelessly entered into the Contract which shows the location of the timber harvest to be “Sec 27 – 34 – 28 Taylor twp. Owen County”. The Branhams maintain that the contract, by its language would have allowed timber harvests over the entirety of each Section so identified.
63. Elkins clearly understood that Jordan could only enter into a contract with respect to property in those sections that was owned by her. Claimant’s Exhibit 26.
64. Jordan’s execution of the Contract without reading its content was undoubtedly careless. As between she and Elkins such carelessness may have proved problematic to her; however, there is no evidence that Jordan’s careless execution of the Contract bears any correlation to the illegal timber harvest that occurred on the Branhams’ property.
65. Elkins acted with intent to defraud Jordan and in so doing committed theft of timber from both Jordan and the Branhams.
66. While the Branhams may seek treble damages, such an award is not mandatory. “The Commission has exercised discretion to demand less than the full impact of the treble damages clause where doing so would work an injustice. Beeman v. Pendley & Zurich N. Amer., 9 CADDNAR 53, (2002), citing Hornaday v. Ammerman, 8 CADDNAR 112, (1999) and Pollock v. Coats, 8 CADDNAR 124 (1999).
67. While an award of three times the stumpage value of the Branhams’ timber may have been appropriately awarded to the Branhams as against Elkins that matter is not presented for determination here.
68. No liability to the Branhams lies as to Jordan, who was herself a victim of Elkins wrongdoing.
B. Jordan’s Liability To The Branhams Relating To The Mitigation Of Damages
69. In addition to farming for the past 35 - 40 years, Minnick has been a licensed timber buyer for approximately six to eight years. Minnick owns his own sawmill and also serves as a County Commissioner. Testimony of Minnick.
70. Once Elkins’ logging activities were halted, a number of logs remained at the site staged in two locations on Jordan’s property. Several logs were piled and many others were laid out on Jordan’s East Field and one smaller pile of logs was located on Jordan’s North Field. Testimony of Mr. Branham & Minnick.
71. The East Field is primarily tillable farm ground with small areas of trees along the perimeter and in the southwest corner. As previously stated at Finding 41, approximately 12 – 15 trees were cut from this parcel by Elkins. Claimant’s Exhibit 22, Respondent’s Exhibit A, Testimony of Minnick.
72. The evidence reveals that once cut, Elkins skidded the logs harvested from the wooded portions of Jordan’s East Field and the Branhams’ property out to various places in the tillable portion of Jordan’s East Field. These logs were eventually stacked into piles from which they were loaded onto trucks and hauled away from the site. Testimony of Mr. Branham & Minnick.
73. If the logs piled in the tillable portion of Jordan’s North Field had been harvested from the Branhams’ property they would have been skidded in the opposite direction from where the logs were being loaded onto haul trucks. For this reason Minnick deduced, and it is reasonable to conclude, that the logs piled in Jordan’s North Field had been cut off Jordan’s woods adjacent to Jordan’s North Field.
74. Evidence as to the number of stumps on Jordan’s property, which as noted in Finding 42, was not provided by the Claimants, would have been useful in estimating the ownership of the logs remaining at the site after Elkins was removed from the property.
75. During the Clark Meeting, Minnick acknowledged that more trees were harvested off the Branhams’ property than were harvested off Jordan’s property. Claimant’s Exhibit 26.
76. On the advice of Mr. Watts, Jordan authorized Minnick to remove the logs that remained on her property in an effort to mitigate damages associated with the timber harvest as well as to prevent additional monetary damage associated with a future inability to farm the ground. Testimony of Jordan & Minnick.
77. It became necessary for Jordan to return to care for her mother in Kentucky. In any event, Jordan freely acknowledged that she did not know how to address selling the logs and noted that she would rely upon Minnick to prepare the fields for planting. Therefore, Jordan relied heavily upon the advice of her attorney, Mr. Watts, and she authorized Minnick to act on her behalf. Testimony of Jordan. Jordan’s knowledge and/or recollection of events associated with the disposition of the remaining logs is uncertain but this appears to result from her lack of direct involvement; there is no significant conflict in her testimony to indicate any lack of veracity.
78. Minnick carried out the necessary activities in Jordan’s absence as requested by Jordan and in this capacity became Jordan’s agent. Id. Minnick’s actions are attributable to Jordan.
79. Minnick acknowledged having failed to keep accurate records regarding the number of logs located in the two fields but testified to his belief that there were a total of 320 total logs. Minnick further testified, “if I remember right it was somewhere between 150 – 200 logs that we moved from the back [Jordan’s North Field] to the front pile [Jordan’s East Field] to be loaded out.”
[VOLUME 13, PAGE 212]
80. Mr. Branham, whose testimony was assertive and certain, testified that he counted 321 logs in Jordan’s East Field and 38 logs in Jordan’s North Field for a total of 349 logs total.
81. Mr. Branham’s testimony with respect to the number of logs left by Elkins and the location of those logs is significantly more persuasive.
82. Evidence indicates that only 12 to 15 stumps were counted in Jordan’s East Field, supporting the reasonable conclusion that the majority of the 321 logs remaining in Jordan’s East Field resulted from trees harvested off the Branhams’ property. This conclusion is consistent with Minnick’s statement during the Clark Meeting. Based upon the previous discussion it is reasonable to conclude that the 38 logs located in Jordan’s North Field are attributed to trees harvested off Jordan’s property.
83. Neither Jordan, nor Minnick consulted with the Branhams about the sale of the logs that remained at the site and the logs were liquidated without input from the Branhams. Testimony of Branham. The Branhams, likewise, made no effort to contact Jordan or Minnick with respect to the proper disposition of the logs until Mr. Branham saw Minnick loading the logs. Testimony of Mr. Branham.
84. The greatest discrepancy in the evidence relates to the value of the logs that were left laying in the field and the mitigation activities conducted by Minnick for Jordan.
85. Minnick offered that it is customary for a timber buyer to remove from the site the most valuable logs first leaving the “top-end”, damaged or otherwise lesser quality logs for the last loads. However, Minnick offered no valuation appraisal of the logs at issue. Testimony of Minnick.
86. During the Clark Meeting, Elkins reported that one of the piles of logs remaining in the field were “butt logs”, possibly of veneer quality. Claimant’s Exhibit 26.
87. However, the Branhams, who bear the burden of proof, presented no evidence with respect to the value of any of the logs remaining in the field.
88. At least one pile of logs remained at the site while McCoy was there to establish the stumpage value of the timber harvested from the Branham’s property. Testimony of McCoy. It was discussed during the Clark Meeting that the DNR forester [McCoy] would be asked to establish a value for the logs and Mr. Branham indicated at that time that he would rely upon the DNR forester to provide that valuation. However, McCoy was not questioned during the administrative hearing about the value of the logs and it is not clear that McCoy ever established a value for the logs.
89. While the logs remaining at the site were from otherwise marketable species of trees, there is conflicting and limited evidence by which to determine the quality or the value of the logs. 
90. The evidence relating to the disposition of the logs is also uncertain.
91. Minnick testified that he contacted three timber companies, including Crone Lumber Company, Inc. (“Crone”), who on or near March 27, 2009 purchased a number of the logs that remained at the site for $5,000.00. Minnick added that Crone was only interested in the logs if the logs were already staged. Minnick added that to facilitate the sale of the logs he even allowed Crone to use his loader to load the logs.
92. Minnick insisted he was not present when Crone loaded logs from where he staged the logs in Jordan’s East Field. However, Branham was adamant that he not only saw Minnick loading logs onto Crone’s trucks but that he stopped Minnick to advise him that Branham had two prospective buyers scheduled to look at the logs. Testimony of Minnick & Mr. Branham.
93. Mr. Branham was privy to Mr. Watt’s instruction to Jordan, delivered during the Clark Meeting which occurred shortly after February 22, 2009, to sell the logs for purposes of mitigating damages. Testimony of Branham.
94. Crones’ receipt indicates a purchase date of March 27, 2009; over 30 days after Elkins’ logging activities were halted. Respondent’s Exhibit E. In over 30 days, the Branhams had not secured a value assessment of the logs, negotiated a possible purchase of the logs or made an effort to contact Jordan or Minnick with respect to the appropriate disposition of the logs. It is noted that it was also during this time, on March 17, 18 and 23, 2009; McCoy was at the site calculating the stumpage value of the Branhams’ trees. Claimant’s Exhibit 23.
95. Further raising a question in the mind of the trier of fact as to efforts made by the Branhams to sell the logs in mitigation of damages is the fact that Mr. Branham left 12 – 13 full trees to decay in the woods. When asked about his failure to sell the 12 – 13 trees Branhams responded, “why should I have to go in there and do that?” Testimony of Branham.
96. The Branhams took little action to effectuate the sale of the logs in mitigation of damages and what effort was made was undertaken in an untimely manner. Minnick, who had a dual interest in selling the logs and in repairing Jordan’s fields for spring planting, did facilitate the sale of certain of the logs in a timely fashion, but in so doing carelessly accounted for the logs despite his knowledge that most of them were the property of the Branhams.
97. Crone’s receipt reflects that they purchased only 106 logs accounting for 7,546 board feet of lumber. Respondent’s Exhibit E.
98. Minnick acknowledged that for the $5,000.00 offer to purchase, Crone was authorized to take any number of logs; there was no log count discussed. Despite Mr. Branham’s insistence, Minnick maintains that he did not load the logs for Crone and further that he was not present when Crone loaded the logs. Minnick admits that he did not count the logs that Crone took from the site. Additionally there is no evidence that Minnick counted the number of logs that remained at the site after Crone took the logs they wanted.
99. However, Minnick disagrees with Crone’s log count insisting that Crone took more than 106 logs from the site.
100. Minnick insisted that Leroy Patton prepared the receipt for Crone. Minnick maintains that Leroy Patton could not know how many logs Crone took from the site. However, if Minnick was not present when the logs were loaded, as he insists, he could not possibly know whether Leroy Patton was present at that time to count the logs as they were loaded. Furthermore, Minnick cannot claim to know whether Leroy Patton was present when the logs were unloaded at Crone’s log yard.
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101. Crone’s written receipt constitutes the best and most reliable evidence of the number of logs taken by Crone for the $5,000.00 payment.
102. The $5,000.00 payment from Crone was deposited into an escrow account held on Jordan’s behalf by her attorney of record, P.J. Watts, where it remains. Testimony of Jordan.
103. Minnick admitted that after Crone’s purchase he took the remaining logs home and cut them into firewood explaining that “I have people who come and get firewood all the time and they went to firewood.” However, Minnick estimated that he removed only 50 – 60 logs, which is far fewer than the number of logs that remained after Crones’ purchase.
104. The evidence suggests that Minnick took personal possession of all the logs except those purchased by Crone, which accounts for approximately 253 logs of unknown values.
105. Minnick acknowledged that since March 2009 he has learned that Dodd’s [another local timber company], purchases pallet lumber at a rate of approximately “$34.00 a ton”. Minnick estimated the logs remaining after Crones’ purchase would have yielded compensation between $600 - $700. Testimony of Minnick.
106. The Branhams’ questioned Minnick as to the whereabouts of 34,138 board feet of lumber, the difference between the total 41,684 board feet McCoy estimated was harvested off the Branhams’ property and the 7,546 board feet Crone purchased. This line of questioning appears to infer that the total estimated board feet of 41,684 harvested from the Branhams’ property remained in the East Field after Elkins had left the site. This contention is not supported by the evidence because Mr. Branham acknowledged that 12 -13 trees were left in the woods to decay and the evidence is clear that Elkins had already hauled between 12 and 17 loads of logs away from the site during the period of at least a week that his logging activities were underway.
107. The majority of the logs left lying in the field were the property of the Branhams, a fact of which Minnick and Jordan were fully aware.
108. In this instance the need to remove the logs from the agricultural fields to facilitate spring crop planting made time of the essence. However, the situation does not entitle Jordan, or her agent, Minnick, to claim the full value of the logs or to disregard the Branhams’ interest in the logs.
109. There is no evidence that the sale to Crone was anything but an arms-length transaction and it is reasonable to conclude that the value of the 106 logs purchased by Crone is $5,000.00.
110. Of the total 359 logs, 106 were sold to Crone and it is reasonably concluded that Minnick, acting as the agent of Jordan, took personal possession of 253 of the logs, the value of which is unknown.
111. It is recognized that a small portion of the logs were the property of Jordan and that Jordan’s agent, Minnick, expended effort to move the logs and effectuated the sale of the 106 logs to Crone. Jordan would be entitled to a portion of the proceeds from the total number of logs as a result.
112. It is determined that the Branhams, who are the owners of the majority of the logs, are entitled to the full $5,000.00 Jordan received from Crone in compensation for less than one-third of the logs.
113. Jordan, through the action of her agent, Minnick, gained benefit of 253 logs of unknown value. The value of the 253 logs may amount to over-compensation or under-compensation to Jordan for her logs and Minnick’s work in effectuating the sale to Crone but that value, whatever it may be, is determined to be sufficient.
114. Because the Branhams, who bear the burden of proof, offered no evidence with respect to the value of the 253 logs remaining after Crone’s purchase, they cannot be awarded compensation with respect to any portion of these logs, in any event.
[EDITOR’S NOTE: The original format of the Administrative Law Judge’s Findings of Fact, Conclusions of Law, and Final Order has been modified to correspond with CADDNAR format. The Final Order, Paragraphs 115 and 116, have been relocated to the “Final Order” section at the beginning of this document.]
 Mr. Watts recited the content of the Branhams’ Motion for Joinder and erroneously stated that an Amended Complaint had not been filed. In fact, the Branhams did file an Amended Complaint associated with their request to join Jordan as a party.
 Elkins stated that all together he had sold 20 loads of logs to Pingleton Lumber but explained that eight of the loads had been from other jobs he identified for Conservation Officer Clark.
 Mr. Branham rejected the contention that he turned in the restitution calculation but he acknowledged that his attorney submitted that statement on the Branhams’ behalf.
 The testimony throughout is consistent that the logs were from marketable species of trees, however many factors, including such things as cracks, knots, evidence of tree-shake, diameter of the log, etc. are considered in determining the actual marketability and value of any individual log regardless of species. See Martin v. Curtis and Teague, 11 CADDNAR 53, (2007).
 It is not clear whether Minnick’s estimation is based upon 50 – 60 logs or 253 logs.