Barry Hornsby and Larry Hornsby v. Bayou Jack Logging

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

03-1544 consolidated with 03-1545

BARRY HORNSBY AND LARRY HORNSBY

VERSUS

BAYOU JACK LOGGING, ET AL.

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APPEAL FROM THE
FIFTEENTH JUDICIAL DISTRICT COURT
PARISH OF ACADIA, NO. 77,587 C/W 77,617
HONORABLE JULES DAVID EDWARDS, III, DISTRICT JUDGE

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ULYSSES GENE THIBODEAUX
CHIEF JUDGE
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Court composed of Ulysses Gene Thibodeaux, C.J., Sylvia R. Cooks, and Oswald A.
Decuir, Judges.

AFFIRMED IN PART; REVERSED IN
PART; AND RENDERED.

Jerry Joseph Falgoust
Dauzat, Falgoust, Caviness and Bienvenu, L.L.P.
P. O. Box 1450
Opelousas, LA 70571-1450
Telephone: (337) 942-5811
COUNSEL FOR:
Defendants/Appellants - Republic Vanguard Insurance Company,
Kenneth Guillot and Bayou Jack Logging

Christopher Shannon Hardy
Penny & Hardy
P. O. Box 2187
Lafayette, LA 70502-2187
Telephone: (337) 231-1955
COUNSEL FOR:
Defendant/Appellant - Republic Vanguard Insurance Company
Frederick Lewis Welter

P. O. Box 635
Rayne, LA 70578-0635
Telephone: (337) 334-8951
COUNSEL FOR:
Secondary Plaintiffs/Appellants - Barry Hornsby, Larry Hornsby,
Douglas Guidry, and Bernadette Guidry

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 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

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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

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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.

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

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with relative certainty.’” Wainwright v. Fontenot, 00-492, 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, 95-435 (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 Wily 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.”

In their pretrial memorandum, the plaintiffs urged that the “proper

measure of damages [to their property] is the cost of restoring the property to its

condition prior to the damage.” Also the plaintiffs’ expert witnesses, Bruce Willis,

an ornamental and shade tree expert, and Robert Thibodeaux, an arborist, testified in

their depositions regarding the value of the trees cut and the cost to restore the

plaintiffs’ property to its pre-cut condition. The plaintiffs also asserted recovery

pursuant to La.Civ.Code art. 2315 that requires one who causes damage to another to

repair that damage. Evidence of the restoration costs were litigated at trial. We find

that the defendants were not surprised that the plaintiffs would seek to recover

restoration damages as opposed to requesting triple the cost of the market value of the

trees removed, pursuant to La.R.S. 3:4278.1.

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Under the circumstances presented in this case, we find that the pleadings

were amended to include the special damages of restoration/replacement costs.

Therefore, the issue of the cost of replacing the cut trees and restoring the plaintiffs’

property was properly before the trial court.

Quantum

Both parties contend that the amount awarded by the trial court was an

abuse of discretion. The defendants assert that the amounts of $154,000.00 for the

Guidrys and $224,000.00 for the Hornsbys are too high. The defendants further assert

that an award that is twelve times the market value of the property damaged is

abusively high. Conversely, the plaintiffs assert that those amounts are too low. The

plaintiffs argue that the damage amount should be the cost to replace the trees that

were cut and removed with trees of the same size. The amount of damages awarded

by the trial court is the amount plaintiffs’ expert testified that it would cost to replace

the cut trees with new trees that are six inches in diameter.

The quantum question in this appeal is whether the trial court’s award for

restoration was reasonable. The trier of fact is accorded great discretion in the

determination of damages. The role of an appellate court in reviewing an award of

damages is not to decide what it considers to be an appropriate award, but rather to

review the trier of fact’s discretion to determine whether that discretion was abused.

Youn v. Maritime Overseas Corp., 623 So.2d 1257 (La.1993), cert. denied, 510 U.S.

1114, 114 S.Ct. 1059 (1994). The adequacy or inadequacy of the award should be

determined by the facts or circumstances of the case under consideration. Corbello

v. Iowa Production, 02-826 (La. 2/25/03), 850 So.2d 686. The burden is on the

plaintiffs to prove special damages by a preponderance of the evidence. Johnson v.

State through Dept. of Public Safety and Corrections, 95-3 (La.App. 1 Cir. 10/6/95),

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671 So.2d 454, writ denied, 95-2666 (La. 1/5/96), 667 So.2d 522. While we must

defer to the trier of fact’s great discretion in the assessment of general damages, the

manifest error standard of review controls on the issue of the assessment of special

damages. Id. After a thorough review of the record in this case, we conclude that the

trial court did not err in awarding the Hornsbys, $224,000.00 and the Guidrys

$154,000.00 in restoration damages.

The trial court based its decision largely upon the expert testimony

presented at trial regarding the amount of money needed to replace the trees that were

cut and removed from the plaintiffs’ property with the result being to restore the

property as close as possible to its original condition. The plaintiffs presented the

expert testimony of Mr. Thibodeaux, an arborist they consulted to help them restore

their property. Mr. Thibodeaux explained his expertise as a person who helps others

make decisions about what to do with respect to trees on their property.

Upon Mr. Thibodeaux’s examination of the Hornsby and Guidry property

where the trees were cut, he saw tree stumps, erosion and some invasive species of

trees beginning to take over the site. From his examination of the remaining tree

stumps, he noted that most of the former trees were healthy water oaks. A forestry

expert, Bruce Willis, was called by the Hornsbys to give them an appraisal of the

value of the timber cut from their property. He testified at trial regarding the size,

number and types of trees cut by the defendants. Mr. Thibodeaux testified that he

agrees with Mr. Willis’ opinion with respect to the size, number and types of trees cut.

Mr. Willis’ testimony corroborates Mr. Thibodeaux’s assessment of the health of the

trees cut. After Mr. Willis explained his method of counting the trees and determining

their sizes, he concluded that sixty-six hardwood trees were taken from the Hornsby

property and twenty-nine saw timber trees. Further, ninety-nine little trees were run

over by Bayou Jack’s “skidder.” On the Guidry property, he found that there were

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fifty-five hardwood pulpwood trees and fifty-three hardwood timber trees. Also, one

hundred eight little trees were run over by Bayou Jack’s skidder. He further testified

that the sizes of the trees ranged from ten inches up to fifty inches in diameter. He

estimated the value to be $600.00 per thousand board feet. The fifty inch trees cannot

be replaced. Mr. Willis also estimated a value of the ornamental shade trees that were

cut and removed. Mr. Willis testified that the value of the Guidry trees, cut and

removed, is $115,439.20, and the value of the Hornsby trees, cut and removed, is

$94,979.12. With respect to the timber value, Mr. Willis estimated the value to be

$12,021.40 for the Guidrys and $10,507.89 for the Hornsbys.

To restore the property to its original condition, Mr. Thibodeaux testified

that trees as large as those that were cut would have to be transplanted on the property.

He explained that trees are replaced according to the trunk diameter size as opposed

to the height of the trees. Due to the cost of finding trees with large diameter trunk

sizes that match the trees that were cut and the terrain of the property, Mr. Thibodeaux

recommended that the cut trees be replaced with trees that have a smaller diameter

trunk size. According to Mr. Thibodeaux, the cost of acquiring and positioning

replacement trees ranged in price from $650.00 for a four inch trunk diameter red oak

to $50,000.00 for a tree with a fifty inch diameter trunk. He further explained that

there would be an additional cost of transporting the trees to the property. If the

replacement trees could be located in an area close to the property, the additional cost

would be minimal. However, if the trees are far from the property the cost could be

very high. Anything beyond a thirty-six diameter trunk sized tree would probably

have a transportation cost added to the acquisition and replanting cost. Mr.

Thibodeaux testified that he was comfortable with replanting trees with a four inch

diameter trunk to restore the property. This type of restoration involves replacing

trees with the same size trees that were cut.

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Mr. Thibodeaux testified about another method of restoration called the

“six inch replacement method.” He explained that instead of basing the replacement

trees on the size of the trees that were cut, a twenty-four-inch diameter trunk tree

would be replaced with four trees of six-inch diameter. Although the property owners

would not get exactly what they had before, the property would be nearly the same.

Mr. Thibodeaux further explained that timber companies typically use one-year-old

saplings to replace cut trees. However, according to Mr. Thibodeaux, the saplings

would get “lost in the weeds” and “overrun by the invasive species.” Thus, the

plaintiffs’ expert concluded, the timber company replacement procedure would not

restore the property to as nearly as possible to its original condition.

The trial court found that Mr. Thibodeaux’s “six-inch replacement

procedure” was appropriate to restore the plaintiffs’ property without giving the

plaintiffs a windfall. In Mr. Thibodeaux’s opinion, the “six-inch replacement

procedure” is the best way to restore the property. To that end, the trial court awarded

the Hornsbys $224,000.00 and the Guidrys $155,000.00. We find that the record

supports the amounts awarded to the plaintiffs for restoration of their property. The

defendants’ claim that the amount is excessive and the plaintiffs’ claim that the

amount is too low are without merit.

Comparative Fault

The trial court found that the plaintiffs were comparatively negligent in

causing the damage to their property because they failed to fence the southern

boundaries of their land, therefore leaving them vulnerable to property damage by

good-faith loggers, like Bayou Jack, or timber pirates. Therefore, the trial court found

that the Hornsbys were twenty percent at fault and the Guidrys were also twenty

percent at fault for the damage done to their property. The plaintiffs assert that the

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trial court erred in assessing them with any percentage of fault because the defendants

failed to assert comparative negligence as an affirmative defense. We agree with the

plaintiffs.

Pursuant to La.Code Civ.P. art. 1005, “[t]he answer shall set forth

affirmatively . . . any . . . matter constituting an affirmative defense.” “The policy

behind [ La.Code Civ.P. art. 1005] is the prevention of ‘trial by ambush.’” Patterson

v. State, 95-1668, p. 8 (La.App. 3 Cir. 12/11/96), 685 So.2d 473, 478, writs denied,

97-27, 97-108 (La. 2/21/97), 688 So.2d 513, quoting, Rider v. Fontenot, 463 So.2d

951 (La.App. 3 Cir. 1985). Comparative fault must be pleaded as an affirmative

defense and the party asserting the defense bears the burden of proving, by a

preponderance of the evidence, that the negligence of the other party was a cause-in-

fact of the accident. Trahan v. Savage Industries, Inc., 96-1239 (La.App. 3 Cir.

3/5/97), 692 So.2d 490, writs denied, 97-1636, 97-1652 (La. 10/3/97), 701 So.2d 209.

The defendants did not plead the affirmative defense of comparative fault. Therefore,

the trial court’s judgment reducing the plaintiffs’ recovery amounts for their

comparative fault is erroneous.

IV.

CONCLUSION

For the above reasons the judgment of the trial court is affirmed as to the

type of damages to which the plaintiffs are entitled and its assessment of the amount

of damages the plaintiffs should be awarded. The judgment is reversed and set aside

insofar as it finds that the plaintiffs were comparatively negligent in causing damage

to their property and insofar as it reduces their recovery based on the trial court’s

decision that they were twenty percent at fault for causing their property damage.

Costs of this appeal are assessed to the defendants.

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AFFIRMED IN PART; REVERSED IN PART; AND RENDERED.

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