Hornsby v. Bayou Jack Logging

872 So. 2d 1244, 2004 WL 957666
CourtLouisiana Court of Appeal
DecidedMay 5, 2004
Docket03-1544
StatusPublished
Cited by9 cases

This text of 872 So. 2d 1244 (Hornsby v. Bayou Jack Logging) 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
Hornsby v. Bayou Jack Logging, 872 So. 2d 1244, 2004 WL 957666 (La. Ct. App. 2004).

Opinion

872 So.2d 1244 (2004)

Barry HORNSBY and Larry Hornsby
v.
BAYOU JACK LOGGING, et al.

Nos. 03-1544.

Court of Appeal of Louisiana, Third Circuit.

May 5, 2004.

*1245 Jerry Joseph Falgoust, Dauzat, Falgoust, Caviness and Bienvenu, L.L.P., Opelousas, LA, for Defendants/Appellants—Republic Vanguard Insurance Company, Kenneth Guillot and Bayou Jack Logging.

Christopher Shannon Hardy, Penny & Hardy, Lafayette, LA, for Defendant/Appellant—Republic Vanguard Insurance Company.

Frederick Lewis Welter, Rayne, LA, for Secondary Plaintiffs/Appellants—Barry Hornsby, Larry Hornsby, Douglas Guidry, and Bernadette Guidry.

Court composed of ULYSSES GENE THIBODEAUX, C.J., SYLVIA R. COOKS, and OSWALD A. DECUIR, Judges.

THIBODEAUX, Chief Judge.

In these consolidated timber trespass cases the defendants, Bayou Jack Logging (Bayou Jack), Kenneth Guillot (Guillot), the owner of Bayou Jack and Bayou Jack's insurer, Republic Vanguard Insurance Company (Republic), admit to wrongfully cutting down trees on the property of the plaintiffs, Barry and Larry Hornsby (the Hornsbys), and Douglas and Bernadette Guidry (the Guidrys). The defendants appeal the judgment of the trial court awarding the plaintiffs costs for replacing/restoring trees to their property. The defendants also appeal the amount awarded by the trial court in damages, asserting that the award was abusively high.

The Hornsbys and the Guidrys also filed appeals questioning the trial court's judgment that their damage amount should be reduced by their comparative fault. They also assert that the trial court erred in failing to award them the full amount of restoration damages. For the following reasons, we affirm the decision of the trial court with respect to the amount of damages *1246 awarded and with respect to awarding restoration costs. We reverse the trial court's decision to reduce the plaintiffs' recovery by twenty percent.

I.

ISSUES

The issues in these consolidated cases are:

(1) whether the trial court erred in allowing the plaintiffs to claim restoration/replacement costs when they did not specifically plead in their petition damages for restoration/replacement of the trees cut;
(2) whether the trial court abused its discretion in the amount of damages it ultimately awarded; and,
(3) whether the trial court erred in ruling that the plaintiffs' recovery should be reduced by twenty percent for their comparative fault in failing to fence their properties on all sides when the defendants failed to specifically plead comparative fault as an affirmative defense.

II.

FACTS

In June 2001, Bayou Jack contracted with landowners in the Roberts Cove area of Acadia Parish to conduct logging operations. However, it did not contract with the Guidrys or the Hornsbys who also owned land in that area. While cutting timber, Bayou Jack employees crossed the boundary of the Cramer land and removed trees from acreage owned by the plaintiffs. There is no dispute that Bayou Jack cut, felled and removed the trees without the plaintiffs' consent. The trial court found that Bayou Jack was in good faith when it cut the trees on the Guidry and Hornsby land. This finding is also not in dispute.

The Hornsbys, two brothers, purchased their land from their family estate in 1994. They testified that they camped, hunted, and rode horses on the land and planned to build on the land. Larry planned to build his retirement home and Barry planned to build a weekend camp. The Guidrys, husband and wife, testified that the land they purchased in 1976 had been owned by Mrs. Guidry's relatives and that they too planned to build their retirement home on the land. Mr. Guidry had built many homes in the past in connection with his earlier ownership of a lumberyard and construction company. He also testified that a portion of the property was intended as a home site for his daughter and son-in-law.

Trial by judge in this matter was held in May 2003 with testimony from Mr. Guidry, the Hornsbys and Kenneth Guillot (Guillot), the owner of Bayou Jack, as well as a number of experts in forestry, tree valuations, real estate appraisal and arboriculture. The issue at trial was the amount of damages due to the plaintiffs. In their petition, the plaintiffs requested that the court award damages in an amount "three times the full amount of the damages sustained." At the conclusion of trial, the trial court awarded the Guidrys damages in the amount of $155,000.00 and the Hornsbys damages in the amount of $224,000.00, subject to a twenty percent reduction for comparative fault. The trial court found that the plaintiffs were comparatively negligent for the cutting of the trees because they failed to fence their properties on all sides. It is from this judgment that both the plaintiffs and defendants appeal.

*1247 III.

LAW AND DISCUSSION

Failure to Plead Special Damages

The defendants assert that the plaintiffs did not specifically allege restoration/replacement damages in their petition and, therefore, the trial court erred in awarding those damages. The defendants further note that the plaintiffs requested damages pursuant to La.R.S. 3:4278.1 in their petition. Louisiana Revised Statutes 3:4278.1 provides, in part, that anyone who, in good faith, cuts and removes any trees on the property of another without the property owner's consent, is liable to the property owner for three times the fair market value of the trees that were cut and removed. The statute does not provide for restoration/replacement damages. The plaintiffs contend that they did not have to make a special allegation specifically requesting restoration/replacement damages as long as the defendants were put on notice that their damage request included the costs of returning their property to its original condition.

"`Special damages are those which either must be specially pled or have a `ready market value,' i.e., the amount of the damages supposedly can be determined with relative certainty.'" Wainwright v. Fontenot, 00-0492, p. 5 (La.10/17/00), 774 So.2d 70, 74, quoting, Frank L. Maraist & Thomas C. Galligan, Jr., LOUISIANA TORT LAW § 7-2 (Michie 1996) (footnotes omitted). Items of special damages must be specifically alleged in the pleadings. La.Code Civ.P. art. 861. Generally, a trial court may not award special damages which have not been specifically plead. Citing a first circuit decision relied upon by the defendants in the present case, Stevens v. Winn-Dixie of Louisiana, 95-0435 (La.App. 1 Cir. 11/9/95), 664 So.2d 1207, the second circuit discussed the purpose of La.Code Civ.P. art. 861 in Wiley v. McDay, 34,985, p. 5 (La.App. 2 Cir. 10/31/01), 799 So.2d 624, 627, which is "to avoid the imposition of surprise upon the defendant." Louisiana Code of Civil Procedure Article 1154 provides the only exception to the general rule announced in La.Code Civ.P. art. 861, and provides in pertinent part: "When issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised by the pleadings."

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Bluebook (online)
872 So. 2d 1244, 2004 WL 957666, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hornsby-v-bayou-jack-logging-lactapp-2004.