Mary Guillory Willis, Et Ux. v. Cenla Timber, Inc.

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

CA 08-1041

MARY GUILLORY WILLIS, ET UX.

VERSUS

CENLA TIMBER, INC.

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APPEAL FROM THE
NINTH JUDICIAL DISTRICT COURT
PARISH OF RAPIDES, NO. 222,454
HONORABLE GEORGE CLARENCE METOYER., JR, DISTRICT JUDGE

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BILLY HOWARD EZELL
JUDGE

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Court composed of Ulysses Gene Thibodeaux, Chief Judge, Elizabeth A. Pickett, and
Billy Howard Ezell, Judges.

REVERSED AND REMANDED.

R. Greg Fowler
Attorney at Law
3918 B Independence Drive
Alexandria, LA 71303
(318) 487-9200
Counsel for Plaintiff/Appellee:
Robert Guillory

Ricky L. Sooter
Jeremy C. Cedars
Attorney at Law
P. O. Drawer 1791
Alexandria, LA 71309-1791
(318) 445-3631
Counsel for Third-Party/Appellant:
Donald Guillory

Walter Brent Pearson
Attorney at Law
P. O. Box 330
Alexandria, LA 71309-0330
(318) 445-1488
Counsel for Plaintiff/Appellee:
Mary Guillory Willis

Gregory Lynn Jones
Attorney at Law
P. O. Box 4478
Pineville, LA 71361
(318) 448-4040
Counsel for Defendant/Appellee:
Cenla Timber, Inc.

EZELL, JUDGE.

In this appeal, Donald Guillory appeals the decision of the trial court granting

summary judgment in favor of Cenla Timber, Inc. The trial court ordered Mr.

Guillory to completely indemnify Cenla in a suit brought against it by Mary Guillory

Willis, Mr. Guillory’s sister, for the wrongful cutting of timber. For the following

reasons, we reverse the decision of the trial court and remand the case for further

proceedings consistent with this opinion.

FACTS

In May 2003, Mr. Guillory contacted Cenla through his agent, Bruce Willis

Forest Management, to sell standing timber on three tracts of land. Mr. Guillory

represented that the land was owned in whole by him throughout the dealings with

Cenla. Cenla agreed to purchase “all merchantable timber” on the tracts of land, and

Willis Forest Management prepared a timber deed in accordance with the agreement.

Cenla paid Mr. Guillory $33,696 for the timber, that was actually co-owned by his

sister, Mary Guillory Willis. The timber was cut during 2003 and 2004.

In October 2005, Mrs. Willis filed suit against Cenla to recover damages

resulting from the cutting of her share of the timber. Cenla then filed a third-party

demand against Mr. Guillory. Cenla filed a motion for summary judgment seeking

to have Mr. Guillory held liable to them for the amounts paid to him for the timber

which was co-owned by Mrs. Willis, and to order Mr. Guillory to indemnify Cenla

for “any and all amounts awarded” to Mrs. Willis in her suit against them. The trial

court granted the summary judgment in favor of Cenla. From this decision, Mr.

Guillory appeals.

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ISSUE

Mr. Guillory asserts three assignments of error on appeal. However, as we

agree with the second, that the trial court erred in granting Cenla complete

indemnification when issues of fact existed as to its own liability under La.R.S.

3:4278.1, et seq., we need not address the remaining two.

STANDARD OF REVIEW

A motion for summary judgment shall be granted “if the pleadings, depositions,

answers to interrogatories, and admissions on file, together with the affidavits, if any,

show that there is no genuine issue as to material fact, and that the mover is entitled

to judgment as a matter of law.” La.Code Civ.P. art. 966(B). The party seeking

summary judgment has the burden of affirmatively showing the absence of a genuine

issue of material fact. La. Code Civ.P. art. 966(C). A fact is material if it potentially

insures or precludes recovery, affects a litigant’s ultimate success, or determines the

outcome of the legal dispute. Hines v. Garrett, 04-0806 (La. 6/25/04), 876 So.2d

764. Appellate review of summary judgments is de novo, utilizing the same criteria

that guide the trial court. Guillory v. Interstate Gas Station, 94-1767 (La. 3/30/95),

653 So.2d 1152.

Louisiana Revised Statutes 3:4278.1 states, in pertinent part:

A. 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.

B. Whoever willfully and intentionally violates the provisions of
Subsection A shall be liable to the owner or legal possessor of the trees
for civil damages in the amount of three times the fair market value of
the trees cut, felled, destroyed, removed, or diverted, plus reasonable
attorney’s fees.

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C. Whoever violates the provisions of Subsection A in good faith
shall be liable to the owner or legal possessor of the trees for three times
the fair market value of the trees cut, felled, destroyed, removed, or
diverted, if circumstances prove that the violator should have been
aware that his actions were without the consent or direction of the owner
or legal possessor of the trees.

Further, La.R.S. 3:4278.2 states, in pertinent part, as follows:

B. A buyer who purchases the timber from a co-owner or co-heir
of land may not remove the timber without the consent of the co-owners
or co-heirs representing at least eighty percent of the ownership interest
in the land, provided that he has made reasonable effort to contact the
co-owners or co-heirs who have not consented and, if contacted, has
offered to contract with them on substantially the same basis that he has
contracted with the other co-owners or co-heirs.

....

E. Failure to comply with the provisions of this Section shall
constitute prima facie evidence of the intent to commit theft of the
timber by such buyer.

As stated in McConnico v. Red Oak Timber Co., 36,985, p.4 (La.App. 2 Cir.

5/16/03), 847 So.2d 191, 195:

La.R.S. 3:4278.1 must be read in pari materia with its companion
statute, La.R.S. 3:4278.2. R.S. 3:4278.2 provides that a co-owner of
land may sell his or her undivided interest in the timber; however, the
buyer cannot remove the timber without the consent of at least 80% of
the ownership interest in the land. La.R.S. 3:4278.2(A) and (B). Failure
to comply with the provisions of the statute constitutes prima facie
evidence of intent to commit theft by the buyer. La.R.S. 3:4278.2(E).
Accordingly, reference to “the owner or legal possessor” in La.R.S.
3:4278.1 must be construed to mean “at least 80% of the ownership
interest in the land.”

In general, a third party dealing with immovable property is charged with

knowledge and notice of the existence and contents of a recorded instrument affecting

the property. Ignorance of such is culpable. Powell v. Dorris, 35,510 (La.App. 2 Cir.

4/5/02), 814 So.2d 763; Ridgedell v. Succession of Kuyrkendall, 98-1224 (La.App.

1 Cir. 5/19/99), 740 So.2d 173. Where such an instrument contains language that

fairly puts a purchaser on inquiry as to the title and he does not avail himself of the

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means and facilities at hand to obtain knowledge of the true facts, he is to be

considered as having bought at his own risk and peril. Cole-Gill v. Moore, 37,976

(La.App. 2 Cir. 12/19/03), 862 So.2d 1197, writs denied, 04-446, 04-657 (La.

4/30/04) 872 So.2d 501, 502.

The evidence submitted by Cenla in conjunction with its motion for summary

judgment does not indicate that there is no genuine issue of material fact as to its own

liability in this matter. To the contrary, the affidavit of Blaine Ussery, the vice-

president of Cenla, indicated that, rather than checking the public record as required

by them, Cenla executed the timber deed solely based on the representations of Mr.

Guillory and his agent, Bruce Willis.

As noted above, Cenla is charged with knowledge of Mrs. Willis’ ownership

interest and cannot insulate itself from any liability merely by purchasing the property

from Mr. Guillory, regardless of how improper his actions may have been, when the

public records indicate that the property was owned by Mrs. Willis. By failing to

examine the public record, Cenla proceeded at its own peril. Moreover, Cenla’s

reliance on the specific terms of a legal contract with less than eighty percent of the

ownership does not exempt it from liability under La.R.S. 3:4278.1. McConnico, 847

So.2d 191. As such, there exists a genuine issue of material fact as to the comparative

fault between Cenla and Mr. Guillory for the wrongful cutting of Mrs. Willis’ timber.

While Mr. Guillory did not supply any evidence in opposition to Cenla’s motion for

summary judgment, he did not need to, as Cenla failed to made a prima facie showing

that its motion should be granted, or that it was entitled to judgment as a matter of

law.

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CONCLUSION

For the above reasons, the decision of the trial court granting summary

judgment in favor of Cenla is hereby reversed. The matter is remanded for further

proceedings consistent with this opinion. Costs of this appeal are assessed to Cenla

Timber, Inc.

REVERSED AND REMANDED.

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