Auger Timber Co. v. Jiles

56 S.W.3d 386, 75 Ark. App. 179, 2001 Ark. App. LEXIS 687
CourtCourt of Appeals of Arkansas
DecidedOctober 3, 2001
DocketCA 01-304
StatusPublished
Cited by3 cases

This text of 56 S.W.3d 386 (Auger Timber Co. v. Jiles) is published on Counsel Stack Legal Research, covering Court of Appeals of Arkansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Auger Timber Co. v. Jiles, 56 S.W.3d 386, 75 Ark. App. 179, 2001 Ark. App. LEXIS 687 (Ark. Ct. App. 2001).

Opinion

L. GRIFFEN, Judge.

In this case, a Union County jury held appellant hable for the wrongful cutting of appellee’s timber and awarded appellee $27,929 in damages. That amount was trebled by the circuit judge for a total award of $83,787. Appellant seeks a new trial on the grounds that the verdict is excessive and that the trial judge committed error in certain evidentiary rulings and damage instructions. We find no error and affirm.

Appellee is the owner of approximately twenty-one acres of timber land in Union County. Directly to the east lies a forty-two-acre tract owned by Robert Charles. In November 1998, Hill Brothers Logging acquired the right to remove timber from the Charles property and contacted appellant to mark the boundaries of the property. Bob Hanry, an employee of appellant, undertook the task and, in the process, mistakenly included almost all of appellee’s timber in the area to be cut. Hill Brothers had cut approximately 10.75 acres of appellee’s timber when appellee, by chance, noticed the wrongful cutting. He contacted Hanry, who admitted that a mistake had been made and conceded that appellee was due payment for his timber. The parties could not agree on the amount owed, however. Six appraisals of the timber’s value were prepared, three by appellee’s experts, two by appellant’s experts, and one by Bob Hanry. The appraisal amounts ranged from $10,362.58 to $25,679.

The parties’ disagreement over the value of the timber was never resolved and, on August 12, 1999, appellee sued appellant for actual and treble damages. The case went to trial, and the jury awarded appellee $25,679 as the fair market value of the timber. Damages for road repair and replanting were stipulated as $1,500 and $750 respectively. The jury was also given the following interrogatory: “Do you find from a preponderance of the evidence that Auger Timber Company, Inc., willfully and intentionally cut timber belonging to Stan Jiles with the intent to deprive him of his property?” Based on the jury’s answer of “yes” to the interrogatory, the trial judge trebled the damage award and entered judgment accordingly. Appellant asked for a new trial, but its request was denied. This appeal followed.

Appellant’s first argument is that the trial judge erred in excluding the testimony of an expert witness, Mr. Kenneth Rock-ett. Rockett was one of several trial witnesses who appraised the value of the wrongfully cut timber. Prior to trial, he testified in a deposition that “I am of the opinion that this was an accident, that they [Auger] weren’t trying to steal Qiles’s] trees.” Appellee filed a motion in limine to exclude that opinion on various grounds, including that Rockett was not qualified to testify regarding the state of mind of appellant’s employees, that his opinion went to the ultimate issue in the case, and that it invaded the province of the jury. The trial judge granted the motion, although he did not state his reason therefor.

Whether a witness may give expert testimony rests largely within the discretion of the trial judge. Williams v. Ingram, 320 Ark. 615, 899 S.W.2d 454 (1995). A trial judge’s decision regarding admissibility will not be reversed absent an abuse of discretion. Id. On appeal, the burdensome task of demonstrating that the trial judge has abused his discretion is on the appellant. Id.

The test for admissibility of expert testimony under Rule 702 of the Arkansas Rules of Evidence is whether specialized knowledge will aid the trier of fact in understanding the evidence or in determining a fact in issue. Mearns v. Mearns, 58 Ark. App. 42, 946 S.W.2d 188 (1997). Appellant argues that, given Rockett’s observation of the property and his experience as a forester, his opinion would have been helpful to the jury in resolving the question of whether appellant’s wrongful cutting was intentional or the result of a mistake.1 We disagree. An expert’s opinion is generally not considered helpful for purposes of Rule 702 unless the opinion is based on information that is beyond the experience and understanding of the average juror. In Williams v. Ingram, supra, a wrongful-death case involving a boating accident, the supreme court held that a marine safety expert’s testimony regarding the dangerous nature of currents on the Arkansas River was properly excluded because there was nothing to indicate that the expert’s knowledge on that point was so specialized that it was beyond the ability of the trier of fact to understand and draw its own conclusions. In Maxwell v. State, 279 Ark. 423, 652 S.W.2d 31 (1983), a murder conviction was reversed because a crime-scene-investigation expert testified that the victim had died in appellant’s home. The supreme court held that it could find no scientific basis for the opinion that was beyond the comprehension of the jury. In Higgs v. Hodges, 16 Ark. App. 146, 697 S.W.2d 943 (1985), a state trooper who investigated a car accident testified that appellant had been driving too fast. We held that the testimony should have been declared inadmissible because, even though the trooper had the expertise to make such a determination, the jury, given the same facts, could have made the determination as well as an expert.

In the case at bar, the jury heard Bob Hanry describe the manner in which the wrongful cutting came about. When Lawrence Hill asked Hanry to put a fine around the Charles property, Hanry went to the site and located what he thought was the northwest corner of the Charles tract. He made no survey nor took any measurements because he felt that, due to his familiarity with the area, he would have no trouble finding the corner on his own. He found a corner, but it was the northwest corner of appellee’s property. From that corner, Hanry began walking east, then walked around a perimeter without measuring any distances, even though he had a tape measure available for use. By the time he completed his task he had marked, in addition to the Charles property, almost all of appellee’s property. Hanry made this twenty-one-acre mistake despite the fact that appellee’s four corners were marked, the eastern border that he shared with Charles was flagged, and his tract was primarily pine in contrast to Charles’s hardwood. In addition to hearing Hanry’s testimony, the jurors viewed maps of the area and photographs of the site. Given the information that was in the hands of the jurors, they were qualified to make the determination of whether appellant acted intentionally without the aid of expert opinion. We cannot say therefore that the trial judge abused his discretion in excluding Rockett’s testimony. Although we are unsure of the reason for the exclusion, we may affirm a circuit judge’s evidentiary ruling if he reaches the right result. See, e.g., Thomas v. State, 62 Ark. App. 168, 973 S.W.2d 1 (1998).

The next issue concerns the trial court’s exclusion, for lack of relevance, of the $20,500 appellee paid in 1996 for the subject property and another tract. Appellant argued below that the price was relevant because damages for wrongfully cut timber should be measured by the difference in the fair market value of the land before and after the timber was cut.

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Cite This Page — Counsel Stack

Bluebook (online)
56 S.W.3d 386, 75 Ark. App. 179, 2001 Ark. App. LEXIS 687, Counsel Stack Legal Research, https://law.counselstack.com/opinion/auger-timber-co-v-jiles-arkctapp-2001.