Case of the Day – Friday, October 25, 2019

HE’S A CAD, NOT A TRESPASSER

It does not take very many years in the general practice of law for an attorney to see people at their worst. There’s nothing like watching a loving family, united in grief over the death of a loved one, get torn apart by greed and jealousy when the time comes to probate the will. A close second, however, has to be divorce.

Early on in my career, I witnessed a wife who threw her husband’s expensive shotgun collection into a swamp, and refused – even on pain of jail for contempt of court – to tell anyone where she had bogged the prized Purdeys. Then there was the husband who hid all the money over a three-month period before announcing, “Surprise, I’m divorcing you!” His wife had been diagnosed with inoperable cancer, and he could not understand why he should spend all the couples’ money on her healthcare when she was just going to die anyway.

One of my favorites was the couple who had agreed to an amicable divorce. They owed about $10,000 on credit cards, so they agreed to jointly borrow the money from the bank to pay off the high-interest debt with a loan which they would share in paying down. The day before the final divorce hearing, the husband called the bank and convinced the loan officer that his soon-to-be ex had asked him to pick up the check. He did, and then forged his wife’s name on the back, took the $10,000, and fled for Florida.

Shortly after he got to the Sunshine State, his mother died and left him $500,000. Using some of the money to get drunk and high, the still-the-husband ran his Harley into a bridge abutment at 95 mph. Since he had never gone through with the divorce, he was still married. Of course the reprobate had no will, so his brother – next in line for the money – got nothing, while my client, the wife (who had been furious at being stuck with the $10,000 loan obligation), got it all. She went to Florida, picked up his new $40,000 truck, all sorts of expensive tools, and the remainder of the money he had inherited (about $420,000). It took two cops to go with her to the family compound of dead hubby in order to pick up the property.

Revenge is sweet.

So why the family law lesson? Because, as we will see in today’s case, trying to screw your ex is never a very good idea. A moment’s visceral pleasure, followed by years (or a lifetime) of regret. Still, the ex-husband, whose in-your-face ripoff of the ex-wife even went to the extent of having her share paid to the new girlfriend, got off easy. When he sold 400,000 board-feet of jointly-owned timber – cheating the ex out of $52,600, the former wife originally got her share plus treble damages under Louisiana’s timber trespass statute (and another $63,000 in legal fees). But the Cajunland Supreme Court ruled that whatever the ex-husband might otherwise be, he was not a trespasser to whom the treble damage statute applied.

Sullivan v. Wallace, 51 So.3d 702 (Supreme Ct. Louisiana, 2010). During their marriage, defendant Bruce Sullivan and plaintiff Janice Sullivan, bought a 120-acre tract of land in Claiborne Parish. The couple divorced in 1990, but they retained the community tract in co-ownership and listed it as an asset in the divorce proceeding. The divorce judgment prohibited the parties from doing anything to sell or diminish the value of community property.

In 1994 and 1995, however, Bruce cut, stacked and sold some of the timber on the property. The checks for the 1994 timber he sold were payable to Bruce’s then-girlfriend and current wife Priscilla Wallace, the defendant’s girlfriend at the time (now wife). The checks for the 1995 timber were made payable to Bruce. In all, Bruce sold over 254,000 board feet, worth over $105,000.

In 1995, Janice learned that Bruce had been cutting and selling timber from their jointly-owned tract. She advised the timber buyer that the property was in litigation, and the buyer immediately ceased removing timber from the property. When Bruce told the buyer there was another 40,000 board feet of timber awaiting pickup, the buyer declined to have anything to do with it.

Janice sued Bruce, his girlfriend Priscilla and the timber buyer, claiming trespass, negligence, and conversion, and seeking treble damages and attorney fees under La. Rev. Stats. 3:4278.1 and 3:4278.2. At trial, Bruce argued the timber had come from his separately-owned but adjoining tract, and that the timber had been damaged by an ice storm and had to be cut. The trial court, noting that the sale receipts predated the ice storm, didn’t believe him. It ruled for Janice, finding that her share of the cut timber was about $52,600.00. To that figure trial court applied La. Rev. Stat. 3:4278.1 to award treble damages, or about $157,800.00, and to award attorney fees in the amount of 40% of the treble damage award, about $63,000.00.

The court of appeal affirmed that Janice was entitled to damages, but it reversed as to the treble damages and attorney fees. The appellate court agreed with Bruce that the timber trespass statute does not apply to co-owners of property, holding that the co-ownership articles of the Louisiana Civil Code provide adequate recourse among co-owners of real property. The appellate court cut Janice’s award to $52,600.00, representing one-half of the value of the lost timber, and vacated the portion of the judgment awarding attorney fees.

Janice petitioned the Louisiana Supreme Court for review.

Held: The treble damage statute for trespass to timber does not apply to co-owners who cut timber without consent of the other owners.

The Court observed that the fundamental question in cases of statutory interpretation such as this one is legislative intent and determining the reasons that prompted the legislature to enact the law. The starting point in statutory interpretation the language of the statute itself. When a law is clear and unambiguous and its application does not lead to absurd consequences, the Court said, the law is to be applied as written.

When the language is susceptible to more than one meaning, however, the Court held, it must be interpreted as having the meaning that best conforms to the purpose of the law, and the words of law must be given their generally prevailing meaning. When the words of a law are ambiguous, their meaning must be sought by examining the context in which they occur and the text of the law as a whole, and laws on the same subject matter must be interpreted in reference to each other.

La.Rev.Stat. 3:4278.1, commonly referred to as the “timber trespass” or “timber piracy” statute, provides that it “shall be unlawful for any person to cut, fell, destroy, remove, or to divert for sale or use, any trees, or to authorize or direct his agent or employee to cut, fell, destroy, remove, or to divert for sale or use, any trees, growing or lying on the land of another, without the consent of, or in accordance with the direction of, the owner or legal possessor, or in accordance with specific terms of a legal contract or agreement.” Although the statute is directed to “any person” who cuts, fells, destroys, removes, or diverts for sale or use any trees, the Court said, the statute is facially ambiguous with regard to co-owners of the timberland, neither expressly including nor excluding these persons from its provisions.

When viewed strictly, the statute is violated only when “any person” acts with respect to trees growing or lying “on the land of another” and when this action is taken without “the consent of … the owner or legal possessor.” The timber trespasser owes the penalty to “the owner or legal possessor of the trees,” a phrase the Court said more logically describes a person other than the wrongdoer as described in the statute. What’s more, the timber trespass statute is found within the title of the Revised Statutes entitled “Agriculture and Forestry,” and the Chapter entitled “Forests and Forestry,” and the part entitled “Protection and Reforestation.” Given this context, the Court held, the legislative purpose behind La. Rev. Stat. 3:4278.1 is to protect those with interests in trees from loggers who enter their property without permission to harvest timber illegally. Thus, with the proper construction in mind, the Court said, “the focus of the statute is on an actor other than an owner.”

The Court said the fact that La.Rev.Stat. 3:4278.1 is not directed to co-owners who act without the permission of their co-owners was further supported by considering it in context with La. Rev. Stat. 3:4278.2, the 80% rule, which allows a timber buyer to cut standing timber when the buyer has the consent of co-owners holding 80% or more of the ownership interest. If 3:4278.1 applies to co-owners, then one co-owner who holds more than 80% of the ownership interest and permits timber to be cut in accordance with La. Rev. Stat. 3:4278.2 would nevertheless be liable to the other co-owners for treble damages under 3:4278.1 despite the fact the timber “buyer” would escape the penalty because of La. Rev. Stat. 3:4278.2(B). “Such a contradiction.” The Court reasoned, “cannot be what the legislature intended in enacting these statutes.”

Therefore, Janice was entitled only to her share of the cut timber.

– Tom Root

TNLBGray140407

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