Case of the Day – Monday, July 23, 2018

ACT IN HASTE, REPENT IN LEISURE

Many years later, we can still see Mom shaking her head at us kids over some blunder or another, asking us, “what were you thinking?”

The answer, of course, is that we were kids, so of course we weren’t thinking at all.

But you wonder how a guy who has been in the timber business for 30 years, has been shown the property boundaries, and has a clear visual cue – a line of trees – to remind him, can nonetheless overshoot by three acres, and commit an expensive timber trespass on someone else’s land. So what was he thinking?

The issue was whether Cameron Klinck (no known relation to Colonel Wilhelm Klinck) was merely negligent, or forged on heedless of the consequences (which is the very essence of recklessness). The difference is crucial, because mere negligence would cost Klinck about what he sold the shanghai’ed trees for, and thus leave his wallet smarting only a bit. Recklessness, on the other hand, will trigger ORC § 901.51, and entitle Ishan Judeh to three times the compensatory damages – in this case, the stumpage value of the trees – what we call “treble damages.”

Judeh v. Mahoning Valley Timber & Land Co., Case No. 03-MA-138, 2004-Ohio-4819 (Ct.App. Mahoning Co., Aug. 31, 2004), 2004 Ohio App. LEXIS 4353, 2004 WL 2029136 (2004). Ishan Judeh owned land next to acreage owned by Gene Pyle, portions of which were wooded. Cameron Klinck, a logger who owned Mahoning Valley Timber & Land Co., contracted to remove timber from Pyles’ land. Pyles described the location of the boundary dividing his and from Judeh’s property.

Klinck removed trees from Pyles land as arranged, but also removed trees from about three acres of Judeh’s land. Judeh sued Mahoning Valley Timber in trespass, conversion, and wrongful taking of timber from his land. The trial court awarded Judeh $6,000, representing the stumpage value of the wrongfully-cut trees, and trebled the damage to $18,000 under ORC § 901.51, finding that Klinck had been reckless in harvesting the trees from Judeh’s property.

Klinck appealed.

Held: The record showed Klinck had been reckless.

The Court of Appeals reviewed the decision with a deferential standard. It “indulge[d] every reasonable presumption in favor of the lower court’s judgment and finding of facts” and “[i]n the event the evidence is susceptible to more than one interpretation, [the court] construe[d] it consistently with the lower court’s judgment.”

In this case, evidence showed that Klinck knew where the property boundaries law. The line was clearly visible by virtue of a tree line which extended 416 feet from south to north between the two parcels. Klinck admitted he knew where the boundary line was located, had maps and had walked the boundary line. Although he did not have the land surveyed, Klinck admitted that it was good business to survey the area of property to be logged and that he used a surveyor 98% of the time. He had been in the timber business for over thirty years and was aware of the risks in failing to survey the property. In addition, the Court said, the magnitude of the trespass – being two to three acres – suggested recklessness.

– Tom Root

TNLBGray140407

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