Dupin v. Chambley

649 So. 2d 704, 94 La.App. 3 Cir. 345, 1994 La. App. LEXIS 3165, 1994 WL 659421
CourtLouisiana Court of Appeal
DecidedNovember 23, 1994
DocketNo. 94-345
StatusPublished

This text of 649 So. 2d 704 (Dupin v. Chambley) 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
Dupin v. Chambley, 649 So. 2d 704, 94 La.App. 3 Cir. 345, 1994 La. App. LEXIS 3165, 1994 WL 659421 (La. Ct. App. 1994).

Opinion

1 iSAUNDERS, Judge.

Raymond Chambley, d/b/a Central Louisiana Land, Timber and Investment (Central Louisiana Land), concededly cut 3.22 acres of plaintiffs’ timberland in this timber trespass case.

The jury awarded plaintiffs $1,000.00 in actual monetary damages for the trees cut and determined that the defendant acted in good faith and did not cross marked boundary lines he knew or should have known to exist. In addition, the jury awarded special damages of $3,200.00 for the cleanup of the property and $300.00 for reforestation.

|2The trial court rendered judgment in accordance with the jury’s findings and additionally denied plaintiffs’ claim for penalties and attorney’s fees, which hinged on a finding of bad faith on defendant’s part,1 and taxed the Louisiana Insurance Guaranty Association (LIGA), named party defendant in place of defendant’s insolvent carrier, for post-insolvency interest and cost.

Both plaintiffs and LIGA appeal. Plaintiffs contend that the jury was manifestly erroneous in accepting lower estimates of their damages than the value suggested by their expert and in concluding that defendant’s trespass was not in bad faith. Finally, plaintiffs contend that, even assuming defendant’s initial trespass was not in bad faith, the trial court erred in not awarding them attorney’s fees under LSA-R.S. 3:4278.1 due to Central Louisiana Land, Timber and Investment’s failure to pay even the undisputed portions owed within thirty (30) days after learning of its timber trespass.

In addition to opposing plaintiffs’ appeal, LIGA represents that Act 651 of 1993 exempts it from being condemned to pay court cost. Additionally, it maintains that the expert witness fees set by the trial court are excessive, particularly those attributable to plaintiffs’ star expert.

We vacate that portion of the judgment denying plaintiffs attorney’s fees under LSA-R.S. 3:4278.1 as to Central Louisiana Land for which we award $8,000.00 for efforts spent at the trial level, but find LIGA immune to them. Otherwise, we affirm the judgment of the trial court.

[706]*706 STIPULATED FACTS

Following opening statements, the jury was advised of several joint stipulations. These included an admission that an employee or contractor working under the ^supervision of Central Louisiana Land crossed over the boundary line and cut timber on the Dupin’s property and that 3.22 acres of Dupin property were affected. In addition, Central Louisiana Land stipulated that its contractor cut timber on a tract of land immediately north of and adjacent to the Dupin tract. Finally, the parties stipulated that reforestation of the acreage would cost $299.30.

For purposes of clarity, the other material facts will be set forth in the context of the legal issues raised by the parties’ briefs.

Value of Cut Timber:

First, plaintiffs maintain that the jury’s fixing $1,000.00 as the actual monetary value of the trees cut was manifestly erroneous. Plaintiffs’ witness, Mr. Charest Thibo-deaux, accepted as an expert in real estate appraisal and forestry consulting, concluded that the fallen timber was worth $2,693.50. He derived this figure from estimating the volume of wood stands cut or damaged and multiplying this figure against average prices compiled by the Louisiana State University Cooperative Extension Service for Area 3, the region of the state in which the Dupin tract is situated.

A lower estimate was made by Tom Dixon, defendant’s expert in the field of forestry and timber appraisal. Like Mr. Thibodeaux, Mr. Dixon surveyed the property, measured the diameter at breast height of each fallen tree, and estimated its board feet by utilizing the standard Doyle chart. Unlike Thibodeaux’s use of standardized regional prices, however, Dixon’s prices were obtained in the vicinity of the Dupin tract.

We see no error that warrants reversal. Where two permissible views of the evidence exist, the fact-finder’s choice between them cannot be manifestly erroneous or clearly wrong. Canter v. Koehring Co., 283 So.2d 716 (La.1973).

14Good Faith/Bad Faith of the Trespassers:

After trial, the jury returned a verdict finding defendant in good faith in its cutting of plaintiffs’ trees and that it had no reason to know, even by reasonable inspection, that it had crossed marked boundary or ownership lines. Plaintiffs claim manifest error in these conclusions.

Our review of the record, including photographs contained therein, leads us to conclude that the jury was not clearly wrong in its conclusions.

Among the evidence favoring a finding of bad faith were the meandering nature of the trespass, less than obvious corner markers, and the defendant’s alleged refusal of plaintiffs’ offer to have an individual familiar with the property show its boundaries prior to defendant’s commencement of lumber operations in the area.

Favoring the jury’s conclusion was testimony by defendant’s witnesses to the effect that the boundary lines were not clearly marked. Additionally, photographs introduced as exhibits indicate that defendant did not remove red ribbons attached to a fence bordering plaintiffs’ property. The presence of these markers could reasonably have been construed by the jury as an indication that Central Louisiana Land lacked bad faith and was simply negligent.

The theory of plaintiffs’ case is basically that defendant contacted them for permission to cross onto plaintiffs’ property since they were cutting adjoining lands, and defendant trespassed after their overtures were rejected. Defendant denied each of these contentions and presented testimonial and other evidence in support of its position. We are unable to say the jury was clearly wrong in its factual findings. The jury was in a better position to evaluate live witnesses than we are, with our access limited to a cold record. Stobart v. State Through DOTD, 617 So.2d 880, 883 (La.1993); Canter, supra.

| Special Damages:

In their fourth assigned error, plaintiffs maintain that the jury did not award sufficient damages for cleanup and reforestation, and clearly erred in awarding no damages for loss of the property’s future value.

[707]*707Again, we are unable to say that the jury’s quantum findings were clearly wrong.

As to the cost of cleaning up the property, plaintiffs’ friend and expert, A.D. Ballard, testified that it would cost $19,500.00 to clean up the 3.22 acres. Defendant’s experts, on the other hand, estimated the job at $2,500.00 and $3,000.00, respectively. The jury awarded $3,200.00.

From the record we discern no clear error on the part of the jury. Plaintiffs’ expert’s estimate included mobilization of $250,000.00 worth of equipment to and from Moss Bluff, $100.00 per hour for use of his excavator and $75.00 per hour for use of his bulldozer, fifty (50) to sixty (60) dump truck loads to move dirt and debris at $75.00 each, and $100.00 per hour for the stump grinder he would have to purchase for the job.

The expert made no actual site inspection and based his opinions on photographs of the scene he was given by plaintiffs.

Defendant’s first expert, Jerry Eaves of Oakdale, with 14 years experience in land clearing, dozer and baekhoe work, indicated that he could remove the stumps, clear the holes and refill them, and remove all sled marks for $3,000.00.

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Bluebook (online)
649 So. 2d 704, 94 La.App. 3 Cir. 345, 1994 La. App. LEXIS 3165, 1994 WL 659421, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dupin-v-chambley-lactapp-1994.