ORDER
Jerry Hornaday is granted an administrative judgment under IC 25-36.5-1 against Ronald Ammerman d/b/a Hoosier Timber Service in the amount of four hundred sixty-two dollars, ($462). The surety bond of Old Republic Surety Company posted with the Department on behalf of Ronald Ammerman d/b/a Hoosier Timber Service and applicable to timber cut in 1997, is forfeited in favor of Jerry Hornaday in an amount not to exceed $154. Ronald Ammerman d/b/a Hoosier Timber Service shall receive credit to the extent payments are made to Jerry Hornaday by Old Republic Surety Company. This administrative judgment addresses all issues of damage and responsibility and, after the 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
1. The Administrative Orders and Procedures Act ("AOPA") at IC 4-21.5, and IC 25-36.5, the Timber Buyers Statute, ("TBS"), apply to these proceedings.
2. In accordance with IC 14-10-2-3, the Natural Resources Commission, ("Commission"), is the "ultimate authority" for the Department within the meaning of IC 4-21.5. The Commission governs AOPA hearings for the Department. IC 14-3-3-25.
3. The Commission has jurisdiction over Ronald Ammerman d/b/a Hoosier Timber Service as a licensed timber buyer in Indiana.
4. A hearing was held in this matter on October 21, 1998.
5. The "Timber Buyer's Statute" ("TBS") is found at Ind. Code 25-36.5 et seq and rules utilized in administering the TBS are found at 312 IAC 14 (formerly 310 IAC 23).
6. 312 IAC 14-6-1 provides a timber grower the opportunity to file with the Natural Resources Commission a complaint to seek compensation under IC 25-36.5-1-3.2 for wrongful timber buying or timber cutting. "Timber grower" means "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." IC 25-36.5-1-1.
7. As provided in IC 25-36.5-1-3(g), an affected person may commence an action under IC 4-21.5-3 for the forfeiture of a bond posted by a "timber buyer" due to a "timber grower" in an effort to recover "legally determined damages for timber wrongfully cut by a timber buyer or his agent."
8. Jerry Hornaday is the owner of a land parcel in Henry County, Indiana on which timber is present and is a "timber grower" within the meaning of IC 25-36.5-1-1.
9. "Timber buyer" means 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 own use and not for resale." Id. Ronald Ammerman d/b/a Hoosier Timber Service testified that he has been a licensed timber buyer for the last 8 to 10 years. In 1997, Ammerman was engaged in the business of buying timber from timber growers.
10. Old Republic Surety Company secures Ammerman d/b/a Hoosier Timber Service for timber buying with a surety bond held under bond # S802310108. 11. On or about October 20, 1997, Ammerman entered into a contract to buy standing timber from Joe Hornaday, "Joe", the adjoining neighbor and brother of Jerry Hornaday. The contract indicated that 8 trees (including 2 maple trees) were to be cut for five hundred dollars.[Footnote 1]
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12. Ammerman stated that he had known Joe Hornaday for more than 40 years and was doing him a favor by agreeing to remove the yard trees.
13. Testimony at hearing shows that Ammerman walked the area of trees to be cut with Joe Hornaday. Ammerman asserts that Joe showed Ammerman the property lines and indicated that Jerry Hornaday owned the woods. Ammerman indicated that he did not look for surveyor stakes and did not check the county recorder's office for property lines.
14. Ammerman further testified that he painted the 8 trees to be cut with green spray paint and numbered the trees from 1 to 8.[Footnote 2] Afterwards, he asked Joe Hornaday to make sure the correct trees were numbered.
15. Ammerman stated that Joe Hornaday later looked at the numbered trees and indicated that they were the correct trees. Ammerman's testimony is supported by the testimony of Greg Adams who was present at the site.
16. Testimony supports a finding that a maple tree on Jerry Hornaday's property was painted #6.
17. The parties agree that Jerry Hornaday's maple tree was cut by Ammerman during the contracted timber cutting for Joe. This maple tree is identified as #6 in Ammerman's hand drawn map of March 18, 1998.
18. A dispute exists as to the value of the tree and the party responsible for the cutting of the maple tree.
19. Jerry Hornaday's petition seeks damages equal to three times (treble) the stumpage value of the maple tree and requests the cost of appraisal for the timber. The tree appraisal as attached to Mr. Hornaday's complaint reflects $125 as the appraisal fee.
20. Jerry Hornaday has the burden of proof to show that he is entitled to compensation from Ronald Ammerman d/b/a Hoosier Timber Service and for compensation for any harm actually resulting from wrongful activities of a timber buyer or timber cutter. IC 25-36.5-1-3.2(f)(1).
21. The timber buyer statute was revised in 1993 to provide that the complaint filed by a timber grower may seek damages equal to three (3) times the stumpage value of any timber that is wrongfully cut or appropriated without payment. [Emphasis supplied]. This change provides some discretion to the administrative law judge in determining if the facts support an award between stumpage damages and treble damages. Additionally, the new version holds the surety liable only for the value of timber wrongfully cut or appropriated. See 25-36.5-1-3.2(g). Any damages awarded which exceed stumpage would be the responsibility of the buyer/cutter since the bond is limited to the value of timber cut. See Hagan et al. v. Lewis et al., VII CADDNAR 146 (1996).
22. Previous case law shows that the legislative intent behind the TBS was to insure that timber cutters exercise reasonable care in timber cutting in order to protect landowners "from the careless felling of their timber." See Baxter v. Little, 465 N.E. 2d 198, 201 (Ind. App. 4 Dist. 1984). This standard of care was not changed in the 1993 amendments to the TBS. Reasonable care should be taken prior to timber cutting in order to protect landowners.
23. The relevant question in this case is whether the requisite amount of care was taken in order to protect Jerry Hornaday from wrongful timber cutting on his land.
24. Mr. Ammerman indicated that he was cutting the yard trees as a favor to Joe Hornaday. While this may be true, the cutting was done as part of Ammerman's business of licensed timber cutting. A contract was entered with Joe Hornaday, monies were exchanged, and Mr. Ammerman benefitted financially from this favor. As such, Ammerman must be held to the same standard of care required for all licensed timber buyers/cutters in Indiana.
25. Testimony shows that at no time did Ammerman review relevant property documents in the county recorder's office to insure that the trees to be cut were located on Joe Hornaday's property. Nor did Ammerman contact or attempt to contact Jerry Hornaday to insure that all trees to be cut were located on Joe Hornaday's property. Ammerman was aware, by conversations with Joe
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Hornaday, that Jerry owned the adjoining property. A timber cutter's efforts to determine property lines must go further than mere questioning of the contracting property owner in order to meet the necessary standard of care under the TBS. The intent of the TBS to protect landowners from wrongful cutting mandates, at the very least, review of property documents in the county recorder's office to insure that property boundaries are followed.
26. The opportunity afforded by IC 25-36.5-1 for joinder of other persons was available at the time this action was brought. See IC 25-36.5-1-3.2(e)(5). At no time did Ammerman move to join Joe Hornaday as a defendant to this action. This option is now foreclosed.
27. Based on the fact that the requisite standard of care was not taken by Ronald Ammerman, Jerry Hornaday should receive treble damages for the wrongful cutting of timber on his property.
28. Jerry Hornaday fails to meet his burden of proof to show he is entitled to the costs of an appraisal on the maple tree in question. No evidence regarding the nature of the tree appraisal done for Jerry Hornaday and the cost of that appraisal was presented at hearing. Attachment of an appraisal document to the petition for review is insufficient to overcome the hearsay nature of the document.
29. The value of the cut maple tree on Jerry Hornaday's property must next be determined.
30. Jerry Hornaday presented evidence of the tree's value through direct examination of Ronald Ammerman. No other evidence of tree value was provided.
31. Ammerman testified that the maple tree approximated 200 board feet using the Doyle Log Rule. He expressed that the tree was valued at $154 delivered into the market (before labor costs), with a value assessed to the tree ranging from 46 cents to 50 cents per board feet. As a licensed timber cutter for at least the last 8 years, Ammerman's estimation of the tree's value is credible. He indicated that he had offered Jerry Hornaday $220 for the tree after discovering the wrongful cut.
32. Jerry Hornaday has proven by a preponderance of the evidence that the tree value should be assessed at one hundred fifty-four dollars ($154). Therefore, treble damages in the amount of four hundred sixty-two dollars ($462) should be awarded to Jerry Hornaday.
33. Old Republic Surety Company's surety bond #S802310108, held to secure Mr. Ammerman for licensed timber buying under IC 25-36.5, should be forfeited to the benefit of Jerry Hornaday. The amount of forfeiture should not exceed one hundred fifty four dollars ($154).
34. The remaining amount of
damages of three hundred eight dollars ($308) is the responsibility of Ronald Ammerman d/b/a
Hoosier Timber Service since the bond is limited to the value of timber cut. See Hagan at supra.