Alexander v. Dunn

15 So. 3d 302, 2009 La. App. LEXIS 1274, 2009 WL 1533003
CourtLouisiana Court of Appeal
DecidedJune 3, 2009
Docket44,272-CA
StatusPublished
Cited by9 cases

This text of 15 So. 3d 302 (Alexander v. Dunn) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Alexander v. Dunn, 15 So. 3d 302, 2009 La. App. LEXIS 1274, 2009 WL 1533003 (La. Ct. App. 2009).

Opinions

DREW, J.

hln this appeal, the issue presented is whether a co-owner of standing timber can be liable to his fellow co-owners for treble damages under La. R.S. 3:4278.1 when he sells the timber without the co-owners’ consent. We conclude that the punitive “timber trespass” statute is inapplicable against co-owners. Accordingly, we reverse the judgment in part, amend the judgment in part and affirm the judgment as amended; we reject the demand by the appellees for additional attorney fees on appeal.

Othell Dunn and his wife Ella owned, as community property, a 24.72-acre tract of land in Lincoln Parish. After Ella died in 1986, her succession was opened; in 1991, the district court rendered a judgment of possession which recognized Othell Dunn as the owner of an undivided one-half interest in the immovable property. The judgment awarded the remaining one-half interest in the property to five particular legatees of Ella (her children): Toya Howell, Raymond Weber, Tamara Gayles, Robert J. Alexander, and Eric Alexander (“the co-owners”). Each legatee received an undivided one-tenth interest (a one-fifth interest of their mother’s one-half interest) in the property.

In 1995, Dunn filed a petition to set aside the judgment of possession. That matter continued for many years until it was finally decided against Dunn in 2007. In the meantime, in 2004, Dunn contracted with a timber company to cut some of the standing timber on the property; he said that he had planted the trees too close together and that they needed to be thinned out. The company cut and removed the timber. Dunn claimed that the company paid him $300. Dunn did not inform or ask permission from the |2co-owners concerning the sale of the timber and he did not share the proceeds of the sale with them.

In 2005, the co-owners learned- that Dunn had sold the timber, and in 2006, the co-owners filed the instant lawsuit against Dunn. Citing La. R.S. 3:4278.1, the plain[304]*304tiffs demanded treble damages and attorney fees from Dunn for the wrongful cutting of the timber. The plaintiffs did not file suit against the timber company but stated in their petition that they reserved the right to do so when they learned its identity. Dunn answered and reconvened, seeking reimbursement from the plaintiffs of one-half of the cost of taxes paid as well as his costs for reforestation and overseeing the property. An expert witness retained by the plaintiffs valued the timber cut from the property at $4,792.80. The court overruled Dunn’s exceptions of prescription and no right of action.

The matter was tried in June 2008; the court considered the documentary evidence showing the ownership of the property and heard testimony from the timber value expert, one of the co-owners, and Othell Dunn. In August 2008, the court issued reasons for judgment. The court ruled that La. R.S. 3:4278.1 applied to this case and that Dunn had willfully and intentionally violated the statute; the court awarded the plaintiffs both treble damages ($7,188.45, three times one-half of the value of the timber) and attorney fees in the amount of $5,000.00. Dunn now appeals; the plaintiffs have answered the appeal and asked for an additional award of attorney fees. On appeal, Dunn argues, inter alia, that the trial court erred pby applying La. R.S. 3:4278.1 to these facts and in finding that Dunn had acted in violation of this rule.

All the parties to this lawsuit are co-owners in indivisión of a single piece of immovable property. La. C.C. art. 480 provides:

Two or more persons may own the same thing in indivisión, each having an undivided share.

La. C.C. art. 797 provides, in part:

Ownership of the same thing by two or more persons is ownership in indivisión.

The immovable property contained standing timber, an immovable, which was owned in indivisión by the co-owners of the land and not a third person, so the timber was a component part of the land. La. C.C. arts. 462-464. Typically, standing timber is considered a capital asset, or product, of land unless the timber is managed as a tree farm or regularly exploited forest. See, e.g., Kennedy v. Kennedy, 96-0732 (La.11/25/96), 699 So.2d 351 (on rehearing).

In a typical case involving the fruits or products of a tract of land, La. C.C. art. 798 governs the relation of the co-owners in indivisión:

Co-owners share the fruits and products of the thing held in indivisión in proportion to their ownership.
When fruits or products are produced by a co-owner, other co-owners are entitled to them shares of the fruits or products after deduction of the costs of production.

See Pender v. Elmore, 37,690 (La.App. 2d Cir.9/24/03), 855 So.2d 930, fn. 2,1 writ denied, 2003-2968 (La.1/16/04), 864 So.2d 632. An action for an |4accounting, a personal obligation, is subject to a prescriptive period of 10 years. La. C.C. art. 3499; Stockmon v. Van Alstyne, 42,922 (La.App. 2d Cir.2/13/08), 976 So.2d 336.

However, as this court recognized in McConnico v. Red Oak Timber Co., 36,985 (La.App.2d Cir.5/16/03), 847 So.2d 191, fn. 2, in cases involving timberland the provisions of La. C.C. art. 7982 are secondary [305]*305to the rules outlined in a more specialized statute,3 La. R.S. 3:4278.2, which provides, in part:

A. A co-owner or co-heir of land may execute an act of timber sale whereby he sells his undivided interest in the timber, and any condition imposing a time period within which to remove the timber shall commence from the date of its execution.
B. A buyer who purchases the timber from a co-owner or co-heir of land may not remove the timber without the consent of the co-owners or co-heirs representing at least eighty percent of the ownership interest in the land, provided that he has made reasonable effort to contact the co-owners or co-heirs who have not consented and, if contacted, has offered to contract with them on substantially the same basis that he has contracted with the other co-owners or co-heirs.
E. Failure to comply with the provisions of this Section shall constitute pri-ma facie evidence of the intent to commit theft of the timber by such buyer.

Section A of this statute recognizes the rule allowing standing timber to be sold and become a separate immovable. Under this section and La. C.C. art. 464, Dunn had the right to sell his undivided interest in the timber to a third person without the consent of the other co-owners.

1 r,However, Section B requires a buyer to obtain the consent of at least 80% of the ownership interest in the land prior to actually cutting the timber. Sections B and E of this rule specify that the penalty for noncompliance falls to the buyer, not a co-owner. In McConnico, supra, this court recognized that a buyer who cuts the timber but has the consent of less than 80% of the ownership interest in the land is subject to the harsh penalty of the “timber trespass” or “timber piracy” statute, La. R.S. 3:4278.1, which provides, in part:

A.

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Related

Haley v. Haley
197 So. 3d 202 (Louisiana Court of Appeal, 2016)
LOUTRE LAND AND TIMBER CO. v. Roberts
72 So. 3d 403 (Louisiana Court of Appeal, 2011)
Sullivan v. Wallace
51 So. 3d 702 (Supreme Court of Louisiana, 2010)
Sullivan v. Wallace
27 So. 3d 1120 (Louisiana Court of Appeal, 2010)
Alexander v. Dunn
15 So. 3d 302 (Louisiana Court of Appeal, 2009)

Cite This Page — Counsel Stack

Bluebook (online)
15 So. 3d 302, 2009 La. App. LEXIS 1274, 2009 WL 1533003, Counsel Stack Legal Research, https://law.counselstack.com/opinion/alexander-v-dunn-lactapp-2009.