Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Baird v. Crosthwait

United States District Court, N.D. Mississippi

September 9, 2019

DAVID E. BAIRD PLAINTIFF/APPELLANT
v.
ALLEN E. CROSTHWAIT DEFENDANT/APPELLEE DAVID E. BAIRD PLAINTIFF/APPELLANT
v.
ALLEN E. CROSTHWAIT DEFENDANT/APPELLEE

          ORDER

          MICHAEL P. MILLS UNITED STATES DISTRICT JUDGE.

         This is a bankruptcy appeal in which appellant David Baird seeks for this court to reverse U.S. Bankruptcy Judge Jason Woodard's decision not to award him certain statutory damages for appellee Allen Crosthwait's acts of timber trespass. The court, having considered the memoranda and submission of the parties, concludes that the bankruptcy court's rulings should be affirmed.

         In his brief, appellee characterizes this bankruptcy appeal as “frivolous, ” and while this court is not prepared to go that far, it is plain that it suffers from rather glaring defects. Before discussing these defects, this court initially notes that Judge Woodard's findings of law in this case are subject to a de novo review, and his findings of fact are reviewed on a “clear error” standard. See Gen. Elec. Capital Corp. v. Acosta (In re Acosta), 406 F.3d 367, 372 (5th Cir. 2005). While this court's standard of review is thus clear, its application of that standard is heavily impacted by deficiencies in appellant's prosecution of this appeal. The most glaring deficiency lies in the fact that appellant has not attached the transcript of the proceedings before Judge Woodard, in spite of the fact that this court allowed him lengthy extensions of time to prosecute this appeal. Throughout his brief, appellee notes instances in which appellant seeks to allege certain facts outside of the record on appeal, and this court agrees that this is improper. Moreover, in his briefing, appellant repeatedly fails to address Judge Woodard's reasoning as to some of his points of error or provides a very selective discussion of that reasoning. This omission leaves him in a very poor position to argue that the Bankruptcy Court's rulings were erroneous as a matter of law.[1]

         All parties agree that Mississippi law governs this dispute, which involves a rather uncomplicated instance of timber trespass. In his memorandum opinion, Judge Woodard described the facts of this case as follows:

The facts are relatively straightforward. The Plaintiff owns a large tract of land bordered by the Defendant's large tract of land. The Plaintiff's tract is entirely covered in timber, both 70 to 75-year-old hardwood trees and 20 to 30 year-old pine trees. The Defendant's land is almost entirely cultivated row crop land. In many places, the crop extends up to the property line.
In late September 2014, the Defendant hired D.L. Boyd to cut the small amount of timber on the Defendant's land. The Defendant was not present when the logging occurred. Instead, he relied on Mr. Boyd to determine the property line and cut accordingly. Mr. Boyd is a logger, not a surveyor, and has no surveying certifications of any kind. After the trees were cut and the dispute arose, both parties hired surveyors to determine the proper boundaries. The surveyors agree that the Plaintiff is correct. The Defendant's own surveyor, Harold Dendy, agrees that the Defendant cut over 14 acres of hardwood and pine trees on the Plaintiff's property.

[Memorandum op. at 3-4]. At trial, appellee maintained that he had gained ownership of the property in question by adverse possession, but Judge Woodard rejected this argument. Judge Woodard found that appellee had unlawfully cut timber belonging to appellant, and he accordingly awarded appellant statutory damages and expenses under Mississippi Code Annotated § 95-5-10(1) and (3).

         While Judge Woodard thus sided with appellant regarding the basic issue of timber trespass, he also found that appellee “did not willfully or recklessly cut the Plaintiff's timber; thus, the Plaintiff is not entitled to enhanced damages.” [Id. At 2] It is this latter ruling which is the subject of appellant's first point of error. The parties agree that the availability of enhanced damages is determined by reference to Miss. Code Ann. § 95-5-10, which is Mississippi's statute governing timber trespass. As amended in 1989, the statute provides that:

(1) If any person shall cut down, deaden, destroy or take away any tree without the consent of the owner of such tree, such person shall pay to the owner of such tree a sum equal to double the fair market value of the tree cut down, deadened, destroyed or taken away, together with the reasonable cost of reforestation, which cost shall not exceed Two Hundred Fifty Dollars ($250.00) per acre. The liability for the damages established in this subsection shall be absolute and unconditional and the fact that a person cut down, deadened, destroyed or took away any tree in good faith or by honest mistake shall not be an exception or defense to liability. To establish a right of the owner prima facie to recover under the provisions of this subsection, the owner shall only be required to show that such timber belonged to such owner, and that such timber was cut down, deadened, destroyed or taken away by the defendant, his agents or employees, without the consent of such owner. The remedy provided for in this section shall be the exclusive remedy for the cutting down, deadening, destroying or taking away of trees and shall be in lieu of any other compensatory, punitive or exemplary damages for the cutting down, deadening, destroying or taking away of trees but shall not limit actions or awards for other damages caused by a person.
(2) If the cutting down, deadening, destruction or taking away of a tree without the consent of the owner of such tree be done willfully, or in reckless disregard for the rights of the owner of such tree, then in addition to the damages provided for in subsection (1) of this section, the person cutting down, deadening, destroying or taking away such tree shall pay to the owner as a penalty Fifty-five Dollars ($55.00) for every tree so cut down, deadened, destroyed or taken away if such tree is seven (7) inches or more in diameter at a height of eighteen (18) inches above ground level, or Ten Dollars ($10.00) for every such tree so cut down, deadened, destroyed or taken away if such tree is less than seven (7) inches in diameter at a height of eighteen (18) inches above ground level, as established by a preponderance of the evidence. To establish the right of the owner prima facie, to recover under the provisions of this subsection, it shall be required of the owner to show that the defendant or his agents or employees, acting under the command or consent of their principal, willfully and knowingly, in conscious disregard for the rights of the owner, cut down, deadened, destroyed or took away such trees. (3) All reasonable expert witness fees and attorney's fees shall be assessed as court costs in the discretion of the court.

Miss.Code Ann. § 95-5-10 (1994) (emphasis added).

         Section 95-5-10(2) thus authorizes enhanced damages only as a remedy for instances of timber trespass which are “done willfully, or in reckless disregard for the rights of the owner.” In his ruling, Judge Woodard correctly applied this legal standard, writing that “the Defendant did not willfully or recklessly cut the Plaintiff's timber; thus, the Plaintiff is not entitled to enhanced damages under § 95-5-10(2).” [Op. at 2]. In explaining his reasons for so ruling, Judge Woodard wrote that:

The Court does not find that the Defendant intentionally cut the Plaintiff's trees. He believed that he was having his own trees cut and had no knowledge that the property line had been crossed. His actions were not willful, as the term is used in the statute.
The Defendant also did not cut the timber with reckless disregard for the Plaintiff's rights. The Defendant intended for Mr. Boyd to find the correct line and to only cut the Defendant's trees, but Mr. Boyd did not find the correct line. The Defendant did not recklessly guess at the boundary and begin cutting. He requested that Mr. Boyd find the line and cut to it. Because the Defendant did not willfully cut the trees or do so with reckless ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.