ORDER
[NOTE: ON NOV. 5, 1998, HENDRICKS SUPERIOR COURT, IN CAUSE NUMBER 32D02-9712-CP-0269, REVERSED THE ALJ. DECISION ATTACHED. COURT OF APPEALS (32A01-9812-CV-441) REVERSED CIRCUIT COURT IN PART AND REMANDED TO THE NRC TO DETERMINE DAMAGE AT 720 N.E.2d 1250 (Ind.App. 1999). COLLIER PETITIONED FOR REHEARING ON JANUARY 19, 2000. ON JUNE 19, 2000, INDIANA SUPREME COURT DENIED THE APPELLEE'S PETITION TO TRANSFER. PARTIES ENTERED INTO A SETTLEMENT AGREEMENT AND RELEASE AND EXECUTED OCTOBER 31, 2000.]
Collier Timber and John Collier Logging are liable for the payment of damages to Norman Cowper in the amount of $48,000.
FINDINGS OF FACT
1. At all times relevant to these proceedings, Norman Cowper ("Cowper") owned approximately 50 acres bordering on SR 142 in Morgan County, Indiana. Exhibit 2.2, provides a very good, enlarged, diagram of the Cowper property.
2. Cowper and his wife reside on the property.
3. With the exception of the driveway, house, and outbuildings, the property in question has been kept in its natural state.
4. The Cowper property contains hills, slopes and valleys as would generally be expected in rural Morgan County.
5. Cowper retired in 1983 because of glaucoma and cataracts in his eyes and diabetes. Cowper's vision is still impaired.
6. Cowper has owned the property for 25 years.
7. The Cowper residence is on a ten acre parcel near SR 142 and there is a totally undeveloped 40 acre tract behind the house.
8. In early June of 1993, a violent storm traveled through Morgan County near SR 142 and did considerable damage to trees close to the house.
9. In 1983, Cowper sold approximately 350 trees from his property to a timber buyer.
10. In 1993, he decided to sell some more timber in order to clean up the damaged trees.
11. Lowell Noel, who in 1993 was in the sawmill business, examined the property during July of 1993 and discovered 29 storm damaged trees which contained marketable timber.
12. Noel made a proposal to Cowper for 10 healthy trees and the storm damaged trees but Cowper was not interested in a contract based on a percentage of the price actually received at the mill. Cowper was only interested in a cash sale so no further discussions took place.
13. Cowper then invited Ron Martin, a self-employed logger to examine the property with similar results. Martin identified 40-50 trees he would be willing to take, about 1\2 of which were storm damaged. Martin was only willing to enter into a contract that would provide a percentage of the proceeds after sale and Cowper was only interested in a cash sale of the timber.
14. At all times relevant to these proceedings, Ray Collier operated a timber buying business in Putnam County, Indiana, called Collier Timber.
15. At all times relevant to these proceedings, John Collier operated a timber buying business in Putnam County, Indiana, called John Collier Logging.
16. Ray Collier and John Collier, both around 40 years old are brothers whose father was in the logging business.
17. Both John Collier ("John") and Ray Collier ("Ray") have considerable experience in the logging business.
18. Both John and Ray bid and contract for logging jobs and frequently help each other with the cutting and hauling.
19. At some point in the summer of 1993, Ray was told to look around SR 142 for some work because property owners wanted to get rid of storm damaged trees.
20. After completing his summer work schedule, Ray took a look at the area and saw some storm damaged property.
21. In October of 1993, Ray first met Cowper at the property, discovered he was interested in having some timber cut, and walked the property around the house with John.
22. Ray then made an offer to Cowper of $4000, with no number of trees specified.
23. Cowper declined, but told Ray that he owned 40 acres of woods that Ray and John had not walked.
24. Ray and John then walked a portion of the 40 acres and found more than 300 marketable trees.
25. At some later date, Ray returned with John and Bill Mack and after walking the woods again, made an offer of $10,000.
26. Cowper rejected that offer.
27. In late January of 1994, Cowper called Ray.
28. The parties discussed the possibility of $12,000 over the phone and on or about January 27, 1994, Ray made another trip to the Cowper property.
29. At that time, Ray left a copy of his preprinted standard contract with Cowper.
30. On February 3, 1994, Ray returned to the Cowper property with John and Bill Mack. John and Mack stayed in the
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truck and were not present at the signing of the contract.
31. During the February 3, 1994, meeting at the Cowper property, Cowper and Ray agreed on a price of $12,500 and construction of a culvert on the Cowper property.
32. Ray did not bring a clean copy of his standard contract with him so he went out to the truck and obtained a blank copy of John's preprinted standard contract.
33. Cowper had prepared a second page to attach to the standard contract.
34. Ray filled in the blanks on John's standard contract ("page 1") and Cowper created the second page ("page 2").
35. Both parties signed both pages which included the phrasing "the attached document shall be a part of this contract the same as if printed here." See exhibit 4.
36. At this point, a relatively simple contract for the sale of goods (timber) becomes complicated.
37. Throughout the negotiations, no specific number of trees had been discussed by the parties.
38. It is clear from the testimony of Ray, John and Mack, that Ray thought he was negotiating a sale for all marketable timber on the Cowper property.
39. It is equally clear from the testimony of Cowper and Randy Kelly, a forester and buyer, that Cowper wanted to limit the number of trees taken.
40. Page One of the contract, standing alone, would allow the taking of all trees "18" on stump."
41. Page Two of the contract, standing alone, would limit the taking to "175 plus 26 16" diameter or larger that are storm damaged."
42. Cowper had one prior experience in selling timber off his property in 1982, when he sold 350 trees for approximately $20,000, an average of $55-$60 per tree.
43. While it is true that the timber cutter in 1982 would have picked the best 350 trees he could find at that price, to find that Cowper intended to sell over 500 trees for approximately $15,000 in compensation, the trier of fact would have to conclude that Cowper was willing to sell his marketable trees for 1\2 that amount per tree.
44. While Cowper may be old and not in the best physical condition, he is not senile or incompetent and there is no evidence in the record from which a conclusion can be drawn that Cowper would sell his trees for 50% of the per-tree price some 12 years later in an inflationary economy.
45. Conversely, the trees involved in the cutting were trees that were passed over 11 or 12 years before this cutting and with the exception of some quality oak trees, were not high grade timber.
46. There is no way an experienced timber buyer would have agreed to a price of $75 per tree for picked-over and storm damaged trees (approximately 200 trees for value of approximately $15,000.)
47. The only conclusion that can be reached by the trier of fact about the signed 2 page document is that there was no meeting of the minds.
48. If the contract were still executory, the decision would be easy.
49. At classic common law, there would be no contract and the parties would have no obligation towards each other.
50. However, in this case, shortly after the documents were signed, Ray and John showed up at the Cowper residence and began work.
51. Several after-the-fact counts of stumps were taken by both trained timber persons and lay persons. It would appear that over 500 trees were taken.
52. Since Ray paid Cowper $12,500, installed the culvert, and cut more than 500 trees, a finding years later that there was not a meeting of the minds is of little help in resolving this matter.
53. Dealings between timber growers and timber buyers are governed by the Timber Buyers Act, IC 25-36.5 ("TBA").
54. The TBA provides for actions such as this one where a grower commences an action against a buyer. IC 25-36.5-1-3.2.
55. Such actions are brought pursuant to IC 4-21.5 (IC 25-36.5 -1-3.2) and the Natural Resources Commission ("NRC") is the ultimate authority within the means of IC 4-21.5 with respect to actions against timber buyers. IC 14-10-2-3.
56. The TBA refers to IC 26-1 ("UCC").
57. The UCC defines "goods" as ". . . 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)" IC 26-1-2-105(1).
58. The UCC specifically states "A contract for the sale apart from the land of . ..or of timber to be cut is a contract for the sale of goods within IC 26-1-2. . ."IC 26-1-2-107
59. Any decision rendered on the facts presented above is governed by the UCC provisions on "sale of goods". IC 26-1-2.
60. The Court of Appeals has ruled on the failure of minds to meet on at least two occasions.
61. In Continental Grain Company v. Followell, 475 N.E. 2d 3218, (Ind.App. 1985),
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the Court held that while UCC abandons the common law "mirror image" rule and permits enforcement of contracts for the sale of goods despite discrepancies between the offer and the acceptance, a party cannot be held to a material term to which he has not agreed.
62. In Sho-Pro of Indiana, Inc. v. Brow, 585 N.E. 2d 1357, (Ind. App. 1992), the Court specifically uses the words "meeting of the minds" and concludes that in the absence of a meeting of the minds, there is not a contract for the sale of goods under the UCC.
63. The trier of fact thus reaches the conclusion that there was no contract for the sale of goods between Ray and Cowper.
64. The TBA contains a provision, IC 25-36.5-1-3.2, that covers the cutting of timber without a contract and requires that payment be made to the timber grower in accordance with IC 26-1-2.
65. IC 26-1-2-723 discusses market price and ways of establishing market price.
66. The general definition of "market price" under the UCC involves a price determined between a willing buyer and a willing seller, neither being under compulsion to buy or sell. See Potts v Offutt, 481 N.E. 2d 429, (Ind. App. 1985).
67. Cowper is entitled to receive the fair market value of his timber at the time it was cut in the late winter - early spring of 1994.
68. One expert witness (Randy Kelly) indicated that he did not believe anyone could make an accurate estimate of board feet (and therefore value) by examining stumps.
69. While the trier of fact certainly agrees with the proposition that it would be much easier and more accurate to make an estimate of value of standing timber than from looking at stumps, to adopt this testimony leaves a land owner like Cowper with no remedy.
70. The evidence from all persons in the timber business in this case is that estimating values is a "guessing game" and sometimes a buyer guesses wrong.
71. With that in mind, estimating value from examining stumps and tops is another way of playing the guessing game.
72. The trier of fact must first determine the amount of consideration paid by Ray.
73. Ray paid Cowper $12,500 and put in a culvert andcrushed stone which provided access to the West Side of the Cowper property.
74. Not a lot of testimony was produced about the culvert but during the site visit, it was observed that a large quantity of stone had been placed in the area and the culvert looked to be professionally installed.
75. Placing a value on it is difficult.
76. Cowper estimated its value at approximately $2100 on his income tax. Exhibit AA.
76. Ray testified that the road and culvert were worth in the neighborhood of $4000.
77. The trier of fact concludes that given the quality of the culvert, Ray's estimate is closer to correct than Cowper's and concludes that a fair estimate of value is $3500 thus bringing the total purchase price to $16,000.
78. Estimating the value of the timber at the time of cutting is more difficult.
79. Cowper hired Jerry Hudson, a consultant forester, to view the site and provide an estimate of stumpage value.
80. Hudson performed a thorough inspection of the property and marked the stumps that looked as though they had been cut within the last year.
81. Hudson also recorded the species and the diameter of the stumps.
82. Hudson could not tell if any of the cut trees had storm damage but did notice some fire damage and wind shake damage.
83. Based on the base size, species, and normal tapering, Hudson estimated the stumpage value at approximately $50,000. See Exhibit 11.
84. Hudson testified that his estimate was based on healthy trees being attached to the stumps and did not try to make and adjustments for fire damage, shake, or storm damage.
85. Hudson agreed that all the problems listed in paragraph 84 will lower the value of the timber.
86. Hudson also based his estimate on selling by sealed bid.
87. John Stambaugh, another consulting forester, also testified as to the value.
88. Stambaugh had never visited the site and his testimony was limited to an analysis of the Hudson report.
89. Stambaugh agreed with the approach and general methodology employed by Hudson.
90. Stambaugh also agreed that shake, storm damages, and fire damage would negatively affect the value of the timber.
91. Randy Kelly testified for John and Ray.
92. Kelly is a forester and timber buyer who specializes in veneer quality timber.
93. Kelly looked at the timber while it was standing.
94. Kelly was not interested in submitting a bid because only white oak was of veneer quality and most of the white oaks had been taken during the first cutting 10 years ago.
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95. Kelly told Cowper he might get $10,000 and to specify the number of trees.
96. Kelly agreed the storm damage and fire damage would lower the value.
97. The witnesses involved in the timber cutting business who testified generally agreed that a rule of thumb for making an offer on a cash transaction was to avoid paying over 50% of the expected price from the mill. Cutting is a risky business with high outlays for equipment, labor, and gasoline so those cutters who consistently keep their timber cost under 50% of the gross proceeds stay in business and those consistently pay more than that go out of business.
98. As discussed in paragraph 46, if Mack had seriously thought that Ray would had a chance to receive $100,000 from the mills (2 x $50,000) for a $15,000-$16,000 timber cost and 6 weeks of work, he would not have declined the offer to be included in the transaction.
99. The evidence presented by Ray and John and their bookkeeper indicated that the value received at mill was just under $50,000.
100. John's testimony indicated a disappointment with the quality of the timber, when John walked the area, his opinion was the average yield per tree would be somewhat better than it was.
101. On the basis of the testimony referred to in paragraphs 99 and 100, a fair market stumpage value would appear to be approximately $30,000.
102. Approaching valuation on a per-tree basis yields a similar result.
103. In a prior sale in the early 1980's Cowper averaged approximately $58 per tree.
104. Many of the larger more valuable trees (specifically white oak) were taken at that time.
105. The Hudson report, attacked only for its valuation and not for its survey of trees, showed close to the trees taken being black and red oak and another 30% being yellow poplar. Exhibit 11.
106. 75 white oak were taken.
107. Exhibit X includes timber pricing information for a number of years including 1982 and 1994.
108. The general trend for most species including the primary ones cut on the Cowper property shows an increase in value of 50-100% over that time.
109. All things being equal, if the 1982 sale was an accurate indication of fair market value, the 1994 value of those trees would average around $100 per tree.
110. The 1994 cutting would not be as valuable as the 1982 cutting in that the 350 best trees were taken in 1982.
111. Also, fire damage and shake damage would reduce the value of the harvest.
112. No on disputed Mack's contention that the storm damaged trees were worth approximately $600.
113. Approximately 500 trees which were not storm damaged were taken.
114. Given the inflationary trend, it is inconceivable that the average value per tree diminished over 11 or 12 years.
115. The Hudson report shows that the majority of trees cut were 20-26 inches in diameter.
116. Even adjusting for wind shake, some fire damage, and alower percentage of veneer quality trees, the fair market value would be in excess of $60 per tree.
117. At $65 per tree plus $600 for the value of the storm damaged trees, the stumpage value would be approximately $33,000.
118. The trier of fact now concludes that the best estimate of fair market stumpage value of the cut timber in this case is $32,000.
119. This results in an underpayment of fair market value by $16,000.
120. The TBA provides for damages equal to 3 times the stumpage value of any timber that is taken without payment. IC 25-36.5-1-3.2 (b) (2) and IC 25-36.5-1-3.2 (f) (2).
121. The purpose of the "treble damage" clause is to place a big incentive for timber cutters to take extreme caution.
122. Mistake of fact, bad faith, and intentional wrongdoing are not defenses to the TBA. Berman v Mailing, 646 N.E. 2d 382, (Ind. App. 1995).
123. While this may be a harsh result, a timber buyer, who is clearly in the best position to prevent mix-ups such as this than is a retired, half blind property owner whose only experience with the timber business is one prior sale in the early 1980's.
124. Ray Collier, as the person who conducted the negotiations with Cowper and paid the purchase price, is liable for $48,000 in damages under the TBA.
125. John had little or no contact with the Cowpers and his liability, if any, arises out of his business arrangement with Ray.
126. Both John and Ray have separate logging business but the usual course of business involves both brothers working on the same job and splitting the proceeds.
127. John visited the Cowper property and walked the woods every time Ray did.
128. The standard contract used by the parties states that the contract is with John Collier Logging
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(exhibit 4) although the reason for that is the fact that at the time of the signing, Ray could not find his own printed contract, so he borrowed one from John.
129. In interrogatories, (exhibit 1), John signed answers that indicated the contract was between John Collier Logging and Cowper (questions 7 through 10).
130. More damaging to John's claim that he was just an independent contractor working for a percentage is exhibit 15, a complaint filed in the Morgan County Court system attempting to reform the contract in question here.
131. In exhibit 15, the Colliers state that "the brothers" negotiated the contract and in the supplemental exhibit filed April 24, 1996, exhibit 15 was amended and Averment 2 includes a statement that "John Collier. . .worked the job [Cowper] with Ray Collier in a joint venture."
132. This amounts to a judicial admission that the Cowper job was a joint venture between Ray and John.
133. Black's Law Dictionary, 6th edition, defines a joint venture as "An association of persons or companies jointly undertaking some commercial enterprise; generally all contribute assets and share risks."
134. Ray and John shared profits. Ray cut the trees and provided the equipment for cutting. John cut the trees into logs and loaded them on John's truck.
135. While John and Ray may have considered the Cowper job as Ray's job, John did retain control over performance in that he was responsible for cutting the trees into logs and transporting the logs to the mill, an important phase of the operation.
136. The evidence even without John and Ray's admissions in interrogatories and court pleadings leads to the conclusion that the Cowper project was a joint venture.
137. Since a joint venture is, liability wise, a partnership created for a specific purpose and a limited duration, all members of the joint venture are liable for the changes imposed by law that arise out of the operation of the joint venture. See Boyer v. First National Bank of Kokomo, (Ind. App. 1985), 476 N.E. 2d 895, and Beck v. Indiana Survey Company, (Ind. App. 1981), 429 N.E. 2d 264.
CONCLUSIONS OF LAW
A. The UCC and TBA govern this cause of action.
B. The documents signed by the parties indicate there was not an agreement for the sale of goods under the UCC.
C. Since there was no valid written contract and timber was taken, the TBA requires that payment for the fair market value be made pursuant to the UCC.
D. Fair market value under the UCC means the stumpage value of the timber stand at the time of the cutting.
E. Since the amount of payment for the trees was not equal to or greater than the stumpage value, the TBA requires judgment in the amount of 3 times the difference in value.
F. Ray and John entered into this project as a joint venture.
G. Each joint venture is liable for the amount due under the TBA.
HENDRICKS SUPERIOR COURT CONCLUSIONS OF LAW AND ORDER
This case came before the court for oral argument on October 6, 1998 upon appeal of an agency decision of the Natural Resources Commission pursuant to the Administrative Adjudication Act, I.C. 4-21.5-5-3. The petitioners, Ray A. Collier and John D. Collier, appeared with counsel, Gregory Black. The respondent, Norman Cowper, appeared with counsel, Don Tabbert and William Lalley. After hearing the arguments of counsel and reviewing the record of the Natural Resources Commission, the Court enters the following Special Findings of Fact, Conclusions of Law and Order:
SPECIAL FINDINGS OF FACT
1. Petitioner, Ray A. Collier, operates a timber buying usiness in Central Indiana known as "Collier Timber." Petitioner, John D. Collier, operates a timber buying business in Central Indiana known as "Collier Logging." Ray A. Collier and John . Collier are brothers who often help each other in their timber buying and logging operations. Their father was also in the logging business. Their businesses are located in Putnam County, Indiana.
2. At all pertinent times, Norman Cowper owned approximately 50 acres of land ordering State Road 142. He has owned this property for 25 years. An undeveloped 40-acre tract lies behind the house and out-buildings.
3. Norman Cowper had previously sold timber n one occasion in the early 1980's when he sold 350 trees for an average of $55.00 to $60.00 per tree.
4. In early 1993, a storm traveled through Morgan County and did considerable damage including damage to some of the trees near the Cowper residence. Mr. Cowper decided to sell some of his damaged timber in order to clean up the property. Sawmill operator Lowell Noel examined Cowper's trees in July of 1993 and determined that 29 trees were damaged. Ron Martin, an independent logger, also examined the trees and identified 40 to 50 trees he would be willing to take.
5. On February 4, 1994, Norman Cowper entered into a contract with Ray Collier on behalf of John Collier Logging to cut and remove dammaged and undamaged trees from the Cowper property. The contract was a written two-page document signed by on each page by Norman Cowper and Ray Collier. The first page appears to be a standard form provided by Collier. The second page is hand-printed.
6. The parties agree that the Colliers did cut and log trees on the property and Norman Cowper was paid pursuant to the contract. The dispute concerns the number of undamaged trees removed. Norman Cowper contends that the contract limited Collier to 175 trees (undamaged) of 18 inches and up, and 26 damaged trees of 16 inches nd up. Collier contends that the contract does not limited [sic] the number of trees 18 inches and up on stump that could be cut.
7. About five months after the logging was completed and payment had been made, Norman Cowper filed a complaint with the Natural Resources Commission alleging that the colliers cut 316 trees off the property without his permission. He did not file a lawsuit seeking damages for breach of contract in any court. Instead, Cowper's complaint seeks triple damages pursuant to the Timber Buyer's Act, I.C. 25-36.5-1-3.2.
8. After a prehearing conference and unsucessful mediation pursuant to I.C. 25-36.5-1-3.2(h), the Colliers filed their motion to dismiss on the grounds that the Natural Resources Commission lacked jurisdiction. The Natural Resources Commission, through it's Administrative Law Judge, denied the motion to dismiss.
9. Thereafter, the matter was heard by the Administrative Law Judge. After taking the matter under advisement and visiting the Cowper property, the Administrative Law Judge entered his Report, Findings of Fact, Conclusions of Law and Nonfinal Administrative Judgment. His conclusions of law include:
"a. The UCC and TBA govern this cause of action;
b. The documents signed by the parties indicate there was not an agreement for the sale of goods under the UCC;
c. Since there was no valid written contract and timber was taken, the TBA requires that payment for the fair market value be made pursuant to the UCC;
d. Fair market value under the UCC means the stumpage value of the timber stand at the time of cutting;
e. Since the amount of payment for the trees was not equal to or greater than the stumpage value, the TBA required judgment in the amount of 3 times the difference in value;
f. Ray and John entered into this project as a joint venture;
g. Each joint venturer is liable for the amount due under the TBA."
10. In his nonfinal administrative judgment, the administrative judge found that Collier Timber and John Collier Logging are liable for payment of damages to Norman Cowper in the amount of $48,000.00.
11. On October 29, 1997, the Natural Resources Commission, after hearing arguments by counsel for the parties, unanimously approved the findings, conclusions and nonfinal order of the Administrative Law Judge. On November 4, 1997, the Natural Resources Commission gave notice that it had affirmed, without modification, the Report, Findings of Fact, etc.
12. Ray A. Collier and John D. Collier filed this petition for review on November 26, 1997.
CONCLUSIONS OF LAW
1. This Court has jurisdiction of the parties and the subject matter of this action for judicial review pursuant to I.C. 4-21.5-5 concerning the action of Natural Resources Commission.
2. I.C. 25-36.5-1.3.2(b) [sic., I.C. 25-36.5-1-3.2(b)] sets forth the prerequisites which must exist before the Natural Resources Commission may exercise it's jurisdiction. This section reads: "(b) The department may under I.C. 4-21.5-3-8 commence a proceeding against a timber buyer or a timber cutter if there is reason to believe that:
(1) the timber buyer or timber cutter has acquired timber from a timber grower under a written contract for the sale of the timber without payment having been made to the timber grower as specified in the contract; or
(2) if:
(A) there is no written contract for the sale of the timber; or
(B) there is a written contract for the sale of the timber but the contract does not set forth the purchase price for the timber; the timber buyer or timber cutter has cut timber or acquired timber from the timber grower without payment having been made to the timber grower equal to the value of the timber as determined under IC 26-1-2."
3. A careful analysis of the facts of this case when compared to the above code section reveals:
A. There was a two page written contract between the parties in this case. The Colliers did pay Mr. Cowper as specified in the contract. Therefore, no jurisdiction is conferred upon the Natural Resources Commission under section (b)(1).
B. There was a written contract between the parties, therefore, no jurisdiction is conferred on the Natural Resources Commission under section (b)(2)(A).
C. The contract does set forth the purchase price to be paid by the Colliers to Mr. Cowper. Therefore, section (b)(2)(B) does not confer jurisdiction upon the Natural Resources Commission.
4. Since the Natural Resources Commission is a creation of the Indiana General Assembly, it may exercise it's jurisdiction when granted such authority by the Indiana General Assembly. Where the facts of a case clearly indicate no jurisdiction, the Natural Resources Commission may not exercise jurisdiction.
5. The conclusion "c" of the conclusions of the Administrative Law Judge is not supported by the evidence. In particular, conclusion "c" states that there was no valid written contract. In fact, there was a valid and legally enforceable two page written contract between the parties. Either party could have filed a lawsuit in a court of law seeking enforcement of the contract, or seeking damages for it's breach.
6. The interpretation and construction of he contract in this case should be left to a court of law. In Austin Lakes Joint Venture. v. Avon Utilities, Inc, et al., (Ind. 1995), 648 N.E.2d 641, 649, the Indiana Supreme Court stated: "The construction of contracts and actions for their breach are matters for judicial determination."
7. The decision of the Natural Resources Commission is void ab initio since it had no jurisdiction from the beginning of this case when Norman Cowper filed his complaint. This contract dispute should be decided by a court of law.
JUDGMENT
IT IS THEREFORE ORDERED, ADJUDGED AND DECREED that the decision and action of the Natural Resources Commission, including it's final order, be and is hereby reversed and vacated. This case is remanded to the Natural Resources Commission for further proceedings consistent with this order. All of which is Ordered this 5th day of November, 1998.