Angelo Sagnibene, Et Ux. v. Roy O. Martin Lumber Co., LLC

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

10-1331

ANGELO SAGNIBENE, ET UX.

VERSUS

ROY O. MARTIN LUMBER CO., LLC

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APPEAL FROM THE
TWENTY-SEVENTH JUDICIAL DISTRICT COURT
PARISH OF ST. LANDRY, NO. 08-C-3766-D
HONORABLE DONALD W. HEBERT, DISTRICT JUDGE

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MARC T. AMY
JUDGE

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Court composed of Ulysses Gene Thibodeaux, Chief Judge, Sylvia R. Cooks, Jimmie
C. Peters, Marc T. Amy and Billy H. Ezell, Judges.

AFFIRMED IN PART; REVERSED IN PART AND RENDERED.

THIBODEAUX, Chief Judge, dissents in part for the reasons assigned by
Judge Cooks.
Cooks, J., concurs in part and dissents in part.
Ezell, J., concurs.

James P. Dore
Robert E. Dille
R. Benn Vincent, Jr.
Lyn S. Savoie
Kean, Miller, Hawthorne, D’Armond,
McCowan & Jarman, L.L.P.
Post Office Box 3513
Baton Rouge, LA 70821
(225) 387-0999
COUNSEL FOR DEFENDANT/APPELLANT:
Roy O. Martin Lumber Company, LLC

Craig L. Kaster
Post Office Box 815
Zachary, LA 70791-0815
(225) 658-5450
COUNSEL FOR PLAINTIFFS/APPELLEES:
Angelo Sagnibene
Nolia Dupuis Sagnibene

Paul D. Spillers
Theus, Grisham, Davis & Leigh, L.L.P.
Post Office Drawer 4768
Monroe, LA 71211-4768
(318) 388-0100
COUNSEL FOR AMICUS CURIAE:
Louisiana Forestry Association

AMY, Judge.

The plaintiffs sought damages after alleging that the defendant wrongfully cut

timber on their property. The defendant reconvened, asserting that it was the rightful

owner of the property. The trial court found in favor of the plaintiffs, determining

that their title included the tract in dispute and that the defendant did not acquire the

property by acquisitive prescription. The trial court awarded statutory damages for

the fair market value of the timber cut and also awarded costs associated with the

restoration of the property. The defendant appeals. For the following reasons, we

affirm in part, reverse in part and render.

Factual and Procedural Background

This case involves the ownership of 3.96 acres of timberland in St. Landry

Parish (hereinafter “the Subject Property”) and, in turn, the appropriate damages due

following the cutting of timber thereon without permission. The record demonstrates

that the Subject Property is a rectangular strip located between a larger parcel owned

by the plaintiffs, Angelo Sagnibene1, and his wife, Nolia Dupuis Sagnibene, to the

south and one owned by the defendant, Roy O. Martin Lumber Company, L.L.C., to

the north. Both parties maintain that their respective property extends into the

Subject Property.

The plaintiffs assert that the Subject Property was part of a larger parcel they

acquired in 1977 through an Act of Exchange. This property was previously that of

Mrs. Sagnibene’s father, Cilton Dupuis, and his wife, Azelda LeJeune Dupuis. The

Dupuis family had acquired their property in 1943 through an Act of Sale.

However, the defendant contends that it acquired the Subject Property through

1
The record indicates that Mr. Sagnibene died during these proceedings. The court
substituted Mrs. Sagnibene, as the independent administratrix of the Succession of Angelo
Sagnibene, as the party plaintiff.

its own 1977 Act of Exchange. This Act of Exchange included a southern border of

property previously possessed by Turner Lumber Company. The defendant asserts

that, after the exchange, it maintained the old Turner Lumber Company boundary line

by marking its border with a yellow painted line and that it marked the corners of its

property by painting the initials “ROM” in these areas. Further, it contends it

included this property in hunting leases and possessed this area through employee

activity on the area.

The dispute as to the ownership of the Subject Property came to light in 1991,

causing the Sagnibene family to conduct a survey at that time. The resulting plat

identified the property as an “area of encroachment.” Both parties assert that, after

that time, they conducted their respective activities on the property. The defendant

asserts it periodically painted its purported border with yellow paint.

The instant matter was provoked when, on December 17, 2007, the defendant

began cutting timber from the Subject Property. Although the plaintiffs requested

that the defendant’s personnel cease operations, the cutting was completed the

following day.

The plaintiffs subsequently filed this suit against the defendant, asserting that

their property was damaged and seeking associated damages, attorney fees, and costs.

In its answer to the petition, the defendant asserted its ownership of the Subject

Property and its timber. Thereafter, in a reconventional demand, the defendant sought

declaratory judgment that it was the owner of the Subject Property by ten-year and

thirty-year acquisitive prescription.

Following a bench trial, the trial court determined that the plaintiffs were the

owners of the Subject Property through their 1977 acquisition of the larger parcel.

2

It further denied the defendant’s acquisitive prescription claim, finding that it failed

to demonstrate adequate uninterrupted possession of the property. The trial court

found that the plaintiffs were entitled to the treble damages available pursuant to

La.R.S. 3:4278.1, and to $288,998 in restoration costs of the property.

The defendant appeals, assigning the following as error:

1. The lower court erred as a matter of law when it decided that
Sagnibene’s title included the four acres in dispute. The title
described the northern boundary as the “Turner Lumber
Company” line and the Turner Lumber Company line was clearly
marked on the south line of the subject property.

2. The lower court erred in finding that Martin Lumber did not have
corporeal possession when (1) Martin Lumber bought Turner
Lumber Company’s property in 1977, (2) at the time of
acquisition, Turner Lumber Company maintained a white-painted
boundary line along an existing hog-wire fence line, (3) Martin
Lumber maintained the same boundary line as Turner Lumber
Company, with a yellow-painted line along the hog-wire fence,
and (4) Martin Lumber leased the property to a local hunting club
and continued its timber operations on the property for the last
30-plus years.

3. The lower court erred in finding the clandestine hunting activity
of Sagnibene’s grandson and son-in-law was open, continuous,
public, and within a visible boundary line.

4. The lower court erred as a matter of law when it declared that
Martin Lumber failed to meet the good faith element for 10-year
acquisitive prescription when (1) good faith possession is
presumed and is determined at the beginning of possession, and
(2) there was no evidence Martin Lumber did not have good faith
at the beginning of possession.

5. The lower court erred in finding that Martin Lumber did not meet
the requisite elements for 30-year acquisitive prescription,
especially when Martin Lumber and its predecessor possessed the
property within visible bounds.

6. The lower court erred as a matter of law when it awarded grossly
excessive damages, totaling more than 30 times the appraised
value of the property.

3

Discussion

Title

The defendant first questions the trial court’s determination that the plaintiffs

owned the 3.96 acres of the Subject Property by virtue of their title. Primarily, it

contends the trial court erred in finding that the northern boundary of the Subject

Property was dictated by section line whereas the plaintiff’s title description provides

that their property was “bounded north by Section Line or Turner Lumber

Company.” (Emphasis added.) The defendant contends the evidence indicates that

the Turner Lumber Company property, which it acquired in 1977, was designated by

a painted white line along the southern border of the Subject Property. As the

defendant undoubtedly possesses the property to the north, it contends that the trial

court erred in determining that its own property did not extend to the southern border

of the Subject Property.

The plaintiffs’ act of exchange by which they acquired their larger tract, and

purportedly the Subject Property, provides as follows:

Cilton Dupuis and wife, Mrs. Azelda LeJeune Dupuis do hereby
convey, transfer and set over unto ANGELO SAGNIBENE and wife
NOLIA DUPUIS SAGNIBENE, accepting for themselves, their heirs
and assigns, the following described property, to-wit:

A certain tract or parcel of naked land, without
improvements, near Palmetto in the 4th Ward of St. Landry
Parish, Louisiana, containing thirty-eight and 52/100
(38.52) acres and bounded, now or formerly, as follows:
North by Section line or Turner Lumber Company;
South by blacktopped highway leading to Palmetto and
also partly by a one acre tract2 of heretofore sold to Angelo
Sagnibene et ux by Cilton Dupuis; East by lands of Preston
Leger and also partly by aforesaid one acre tract of land
belonging to Angelo Sagnibene and wife and West by

2
By virtue of these two transfers the record refers to the plaintiffs as owning a 39.5 acre
tract.

4

remaining and adjoining land of Cilton Dupuis.

The above parcel of land is situated in Section 4,
T-4-S, R-6-E, and is a part of a one hundred eleven (111)
acre tract of land which Cilton Dupuis acquired of Harris
Hyman, Jr. et al on July 20, 1943, and recorded July 23,
1943, as per act of sale duly recorded in the conveyances
of St. Landry Parish, Louisiana.

(Emphasis added.)

In resolving the title issue, the trial court referenced the Sagnibene property

description in the 1977 Act of Exchange, above, and further stated that:

[The] Sagnibene[s]’s claim that the disputed 3.9 acres lies within the
above listed property description granting them ownership by virtue of
title executed in 1977 and traced to their common ancestor by virtue of
title executed in 1943 between Cilton Dupuis and Harris Hyman, Jr.
Furthermore, [the] Sagnibenes rely on a survey of the property
conducted by Robert Wolfe, Jr. in 1991 and M.J. Goudeau in 1943.

Roy O. Martin claims that the disputed property was part of the
old Turner Lumber Company property, which was acquired by
Friedberg/Moncrief in 1976. The property description that Roy O.
Martin relies upon states in pertinent part:

A certain small tract or lot of land containing 3.71
acres more or less, located in the Southeast corner of the
Southwest Quarter of Section 33, Township 3 South,
Range 6 East, which is more particularly described as
follows:

Beginning at a point on the South line of Section 33,
Township 3 South, Range 6 East, forty nine feet west of the
Southeast corner of South west Quarter of said Section 33,
thence West along the Southern line of Section 33, a
distance of seven hundred sixty-three feet, thence North a
distance of two hundred nineteen feet to an iron stake,
thence East a distance of seven hundred sixty-three feet to
an iron stake forming the Northwest corner of Lot No. 1,
thence South a distance of two hundred five feet to the
point of beginning.3

3
In its reply brief, the defendant disputes that the property description referenced by the trial
court is the one upon which it relies. It instead asserts that the 1977 Friedberg/Moncrief Act of
Exchange provides it with justiciable title. This latter description provides as follows:

5

After careful examination of the exhibits admitted into evidence,
the court finds that the Sagnibenes have title to the 39 ½ acres which
include the approximately four (4) acres being contested. The evidence
presented establishes that in 1943 Mrs. Sagnibene’s father purchased
111 acres from the Hymans. The purchased property bounded on the
north by Section 33, Township 3 South, Range 6 East. In 1977, Mrs.
Sagnibene and her husband obtained the 39 ½ acres from her father,
including the approximately four (4) acres of this disputed area. In
addition, testimony at trial verified that the disputed tract was referenced
in numerous right of ways, servitudes, oil, gas and mineral leases, and
tax records, all of which confirm the Sagnibenes own the approximately
four (4) acres in dispute. The title records introduced by Roy O. Martin
show Turner Lumber Company acquired property from St. Landry
Timber Company in 1939 and that acquisition confirms the property
acquired by Turner was the southwest quarter of Section 33, Township
3 South, Range 6 East. Later, Roy O. Martin acquired this property
from Turner Lumber Company. However, this court finds that Roy O.
Martin never acquired the property south of Section 33, which is where
the subject four (4) acres are located.

Certainly, the trial court’s reasons for ruling, by setting out the entirety of the

plaintiffs’ title description acknowledges the defendant’s contention that the

plaintiffs’ property was bordered to the north by section line or Turner Lumber

Company. The 1943 Act of Sale by which the plaintiffs’ ancestor in title, Cilton

Dupuis, acquired his 111 acre parcel from Harris Hyman, Jr. provided similarly.

As seen by the remainder of the trial court’s reasons for ruling and in the

defendant’s assignment, the equivocation of the northern border by section line or

Turner Lumber Company gives room for the defendant’s claim by acquisitive

prescription, discussed below. It does not, however, preclude the trial court’s

determination that the plaintiff held superior title to the Subject Property. According

to the plaintiffs’ expert in engineering and surveying, Robert Wolfe, Jr., the Subject

Section 33.
All of the West Half (W-1/2) of Section Thirty Three (33); South of the midpoint of
Bayou Rouge, less and except 3.71 acres sold to Preston Leger by Act No. 340689,
records of St. Landry Parish, Louisiana, and less and except 0.23 acres sold to Edgar
Bertrand by Act No. 340688 of records of St. Landry Parish, Louisiana, both sales
dated December 31, 1953.

6

Property is bordered to the North by the north line of Section 4. He determined that

this section line was the same as determined in surveys completed in 1942 and 1943,

as well in other surveys conducted in the area. This provided a reasonable basis for

the trial court’s determination that the Subject Property was bordered to the North by

the section line between Sections 4 and 33, that the plaintiff’s property description

allowed for the designation of its northern border by section line, and that the

defendant’s property description included no indication that property was acquired

south of Section 33. To the extent that the trial court’s interpretation of the property

description relied on factual determinations and credibility assessments of the parties’

experts, these findings are supported by the record and are, therefore, not disturbed

on appeal.

This assignment lacks merit.

Acquisitive Prescription

The defendant’s next four assignments stem from the trial court’s rejection of

its alternative claims of ownership by ten-year or thirty-year acquisitive prescription.

We address these in turn.

Possession

Louisiana Civil Code Article 3446 provides that “[a]cquisitive prescription is

a mode of acquiring ownership or other real rights by possession for a period of

time.” However, important in the trial court’s factual findings and now contested by

the defendant, is Article 3476 which states that “[t]he possessor must have corporeal

possession, or civil possession preceded by corporeal possession, to acquire a thing

by prescription. The possession must be continuous, uninterrupted, peaceable,

public, and unequivocal.” (Emphasis added.)

7

A party pleading acquisitive prescription must bear the burden of proving all

essential facts. Merritt v. Brennan, 08-973 (La.App. 3 Cir. 2/4/09), 3 So.3d 646,

quoting, Mistrict v. Kurtz, 610 So.2d 226, 230 (La.App. 3 Cir. 1992), writ denied, 612

So.2d 102 (La.1993). Further, the question of whether a party has possessed the

subject property for prescription purposes is a factual determination for the trial court

and will not be disturbed on appeal unless it is manifestly erroneous or clearly wrong.

Prince v. Palermo Land Co., Inc., 05-1399 (La.App. 3 Cir. 5/3/06), 929 So.2d 831.

Also, the trial court is owed great deference and, when its findings are based upon

determinations as to the credibility of witnesses, its findings are virtually never

manifestly erroneous or clearly wrong. Id.

In ruling on the issue of possession, the trial court stated:

With regard to possession, the Court finds that Roy O. Martin
may have in fact painted trees in order to identify its boundary line
between 1991 and 2007, walked the property, and inspected the
property. However, the Sagnibenes have also exercised possession of
this property during the same time and previous to the time Roy O.
Martin attempted to possess. As testified, the Sagnibene family hunted
the property every year from 1977 to present, set up deer stands on the
property, and has also painted over the trees that had been marked. Roy
O. Martin has failed to prove uninterrupted and continuous possession
and failed to prove it conducted sufficient activities on the disputed
property which gave notice to the public, including the Sagnibenes, that
it intended to possess as owner. The possession claimed by Roy O.
Martin was not actual, physical, open, public, unequivocal, continuous,
uninterrupted and did not show an intent to possess as owner.

The defendant contends that the trial court erred in failing to accept what it considers

to be evidence overwhelmingly demonstrating that it exercised corporeal possession

of the Subject Property. In short, it asserts that its witnesses testified regarding a

visible, painted boundary line, a fence, and the further possession of the property

through the activities of a hunting club that leased a larger 1300 acre area from the

8

defendant. It also observes that the forested Subject Property distinctly differs from

the Sagnibenes’ adjacent farm land.

The defendant correctly points out that the record contains evidence that could

have been construed as supporting a finding in its favor on the point of corporeal

possession. However, the trial court could have interpreted the evidence as it did to

conclude that the defendant failed to prove that its alleged possession fit within the

definition of La.Civ.Code art. 3476. Both parties presented testimony and

photographic evidence regarding whether the southern boundary of the Subject

Property was identified by the yellow paint marks historically used by the defendant

and whether white paint marks, historically used by Turner Lumber Company, existed

in that area before the defendant acquired the property.

With regard to the early years of the defendant’s possession, the defendant

produced Jewel Willis, accepted as an expert in a number of timber-related areas,

including timberland boundaries, who explained that he felt that the quality of the

paint remnants and the wire associated with the fence remnants found on the border

indicated that they predated the mid-70s. Further, Robert Bihm, the President of the

Fritz Field Hunting Club, testified that this club has annually leased a 1300 acre tract

from the defendant since 1978. He testified that he was familiar with the Subject

Property and that yellow paint had been on the southern and eastern boundaries of the

subject property since that time. He denied that he had seen other hunters in the area.

He further explained that in the early 1980s, a hunter, Kenneth Dupuis, shot a deer

from a stand adjacent to the property and that he had asked for permission to enter the

Subject Property to retrieve the deer, which had crossed onto the property and died.

9

While pieces of evidence regarding this alleged early possession by the

defendant and/or Turner Lumber Company is contained in the record, the trial court

could have found that the quality of the evidence did not sufficiently satisfy the

requirements of La.Civ.Code art. 3476. While Mr. Willis testified as to areas of paint

and fencing that he felt existed in the 1970s, neither the testimony nor the

photographic evidence mandated a finding that any border designation was

“continuous, uninterrupted, peaceable, public, and unequivocal[.]” Id. Rather, the

evidence as to this early existence of the paint and fencing was sporadic and vague.

Instead, the trial court also heard from James Morgan, the plaintiffs’ son-in-law, who

testified that he had been going to the property for hunting purposes for forty-five

years. He explained that he had not seen yellow paint “as such” on the trees along the

southern border of the encroachment. Instead, he stated that he only saw yellow paint

after it was covered with dark paint.4 He noted that shortly before trial, the defendant

again placed yellow paint over this dark paint. Also related to this early time period

after the parties’ acquisition of the property in the 1970s, Chandler Hutchins testified

that he had hunted in the area for over thirty years and that he had never been told to

leave.

Similarly, Mrs. Sagnibene testified that her parents purchased the property

approximately sixty-five years earlier. She explained that some of her father’s

property was farmland, and some was woodland, which was used for hunting and for

cattle during this time. After the wooded area was no longer used, she explained that

the fencing on the area was no longer maintained. She denied knowing whether

4
As further addressed below, Mrs. Sagnibene testified that, over ten years prior to trial, she
placed brown paint on what she felt was her border after the defendant had freshly placed yellow
paint on the border.

10

yellow paint had been on the border of the Subject Property when she and her

husband purchased the property. These witnesses support a finding by the trial court

that any marking of the southern border by either the defendant or Turner Lumber

Company, in the early days of the time period at issue, was not so obvious and

unequivocal as to necessarily fit within the parameters of Article 3476. Further, Mrs.

Sagnibene’s explanation of her family’s long time use of the property, in part, as

farmland and, as part, for hunting and raising cattle undercuts the defendant’s

contention that the change in landscape necessarily indicates that it was maintained

as part of the adjacent timberland.

Also, the record indicates that, subsequent to 1991, the parties’ boundary

dispute became apparent when the defendant asked Mr. Sagnibene for permission to

travel along a roadway on his farmland to cut timber from the Subject Property.

While Mr. Sagnibene refused access, the parties met and Mr. Sagnibene hired Mr.

Wolfe to complete the 1991 survey referenced above. Thereafter, and as referenced

above, the defendant marked the southern border of the property with its yellow paint.

It did so repeatedly. However, the trial court’s determination that this possession was

interrupted is supported by the record. Notably, Mrs. Sagnibene testified that she

painted over the brown paint more than ten years prior to the trial. Too, when the

timber cutting commenced in 2007, the defendant’s employees were immediately

notified that they were cutting on property claimed by the plaintiff.

Given the limited evidence regarding the quality and obviousness of the

defendant’s possession during the early years of the defendant’s alleged possession

and the very distinct interruptions remarked upon in 1991 and beyond, we find no

manifest error in the trial court’s factual findings regarding the defendant’s

11

possession of the subject property. This finding is applicable to the defendant’s

claims of both ten-year and thirty-year acquisitive prescription.

Hunting

The defendant next argues in brief that the trial court erred in determining that

“the clandestine hunting activity of Sagnibene’s grandson and son-in-law was open,

continuous, public, and within a visible boundary line.” It points to a statement in the

trial court’s reasons for ruling that “the Sagnibenes presented evidence at trial to

establish that they have corporeally possessed the subject property since acquisition.”

The defendant contends the trial court incorrectly found that there was evidence that

the plaintiffs’ hunting activities were public for purposes of acquisitive prescription.

However, reference to the trial court’s reasons for ruling indicates that, after

setting forth the defendant’s evidence presented in support of its acquisitive

prescription claim, the trial court’s full statement, excerpted in part by the defendant,

provides that: “Contrarily, the Sagnibenes presented evidence at trial to establish that

they have corporeally possessed the subject property since acquisition.” The

remainder of the paragraph provided an overview of the plaintiffs’ evidence, only a

portion of which related to the plaintiffs’ family’s use of the area for hunting

purposes. Instead, the trial court’s later reference to the family’s hunting practices

was used as a finding undermining the defendant’s contention that it proved its own

sufficient possession of the property. Recall too, that the trial court found that the

plaintiffs owned the property by virtue of their title. This assignment would be

relevant had the trial court found that the plaintiffs owned the property by acquisitive

prescription, which it did not.

12

Good Faith

As explained above, the defendant asserted that it possessed the property

through either ten-year5 or thirty-year acquisitive prescription. Louisiana Civil Code

Article 3475 lists the requisites for acquisitive prescription of ten years as:

“possession of ten years, good faith, just title, and a thing susceptible of acquisition

by prescription.” As noted by the defendant, Article 3481 creates a presumption of

good faith and provides that “[n]either error of fact nor error of law defeats this

presumption. This presumption is rebutted on proof that the possessor knows, or

should know, that he is not owner of the thing he possesses.” Id. Furthermore, “[i]t

is sufficient that possession has commenced in good faith; subsequent bad faith does

not prevent the accrual of prescription of ten years.” La.Civ.Code art. 3482

(emphasis added). In this assignment, the defendant asserts that the trial court erred

in determining that it did not have good faith in its possession of the property, at least

at the commencement of the acquisitive prescription period.

However, this assignment is rendered moot by our above discussion regarding

possession. As explained above, the evidence regarding the quality of the

defendant’s possession during the early years of its acquisition is limited. Instead,

testimony only indicated remnants of historic paint and fencing. No testimony or

physical evidence was so compelling as to the continuity or obviousness of these

purported indicia of possession to have demanded a finding that the defendant

established the first element required under Article 3475, i.e., possession of ten years.

This assignment is moot.

5
La.Civ.Code art. 3473 provides that “[o]wnership and other real rights in immovables may
be acquired by the prescription of ten years.”

13

Damages

Alternatively, the defendant contests the trial court’s award of damages.

Chiefly, the defendant questions the trial court’s award of restoration damages in the

amount of $288,998, a figure the defendant asserts is ‘more than 30 times” the

appraised value of the 3.96 acres of the Subject Property. Instead, the defendant

contends that jurisprudence indicates that the trial court’s judgment should have been

more reflective of the property’s appraised value of $9,433 before the timber harvest.

In assessing damages, the trial court first awarded three times the value of the

harvested timber. This award was in keeping with La.R.S. 3:4278.1, which provides

a penalty for the cutting of trees without consent, as follows:

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.

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.

After citing Paragraphs A and B, above, the trial court provided the following

findings:

In Thibodeaux v. Western World Insurance Company, [391 So.2d 24
(La.App. 3 Cir. 1980)], the Third Circuit held that when a person
intentionally trespasses onto the property of another with the intent to

14

cut timber, the plaintiff’s [sic] should be awarded three times the fair
market value of the trees pursuant to statute, plus the cost associated
with restoration of the property.

Based on the evidence, testimony, and record, this Court finds that
Roy O. Martin was in bad faith and willfully trespassed onto the
Sagnibene[s]’s property, removing standing timber belonging to the
same. In addition to cutting standing timber not belonging to it, Roy O.
Martin left the property in an unacceptable condition, causing the
property to be of no use for harvesting timber or any other purpose. The
Court finds that the Sagnibenes’s [sic] are entitled to three times the
value of the trees and the restorative amount required to return the
property to an acceptable condition.

In determining the amount of damages recoverable, Plaintiff’s
[sic] presented testimony and evidence as follows:

• Mr. Culpepper’s services were employed to determine the value
of the timber removed from the property. Mr. Culpepper testified
that approximately 104 trees valued at $13,459 [6], were removed
from the property.

• Mr. Johnson testified that the cost of removing stumps and
returning the property to natural grade so trees could be replanted
were estimated to total $288,998.

The court finds the testimony presented by the plaintiff regarding
damages is credible and reliable, [and] therefore relies on such evidence
presented in determining the total amount of recoverable damages.

Thus, based on the evidence cited, the resulting judgment awarded damages to the

plaintiff in the amount of $329,075.007, attorney fees in the amount of $13,225.41,

and associated expert witness fees.

Here, the trial court awarded treble damages under La.R.S. 3:4278.1 and those

attributable to restoration.8 It cited Thibodeaux, 391 So.2d 24, for the proposition that

6
Mr. Culpepper’s report indicates that the actual figure is $13,359. This correct figure is
reflected in the total amount awarded in the judgment.
7
The reasons indicate that this figure “includes three times the market value of the trees
totaling $40,077 and restoration costs of $288,998.”
8
Although the plaintiff sought restoration damages for the removal of stumps and the return
of the grade after the timber harvesting, the trial court did not award damages associated with the
planting of trees.

15

both were available. However, Thibodeaux predates relevant Louisiana Supreme

Court jurisprudence on the issue of restoration after property damage caused by

tortious conduct.

In Hornsby v. Bayou Jack Logging, 04-1297 (La. 5/6/05), 902 So.2d 361, 365,

the Louisiana Supreme Court addressed the “proper measure of damages due a

landowner whose timber was removed without consent.” In laying out the available

remedies, it advised that it had previously held that such a landowner “may recover

pursuant to La.R.S. 3:4278.1 or under general tort principles set forth in La.Civ.Code

art. 2315[9].” Id. (emphasis added), citing First South Prod. Credit Ass’n v. Georgia-

Pacific, 585 So.2d 545 (La.1991). Thus, it is clear that in the present matter the

judgment was in error insofar as it awarded damages pursuant to La.R.S. 3:4278.1

and for restoration damages pursuant to La.Civ.Code Code art. 2315. We turn to

consideration of the evidence to determine which theory of recovery is appropriate.

The supreme court noted that the calculation of statutory damages pursuant to

La.R.S. 3:4278.1 is clear and unambiguous. Hornsby, 902 So.2d 361. Yet, general

tort recovery “when restoration is the objective, is not as straightforward.” Id. at 365.

For this latter analysis, the supreme court referred to its existing analysis of the

recovery of property restoration costs allegedly due under La.Civ.Code art. 2315. Id.,

citing Roman Catholic Church of the Archdiocese of New Orleans v. Louisiana Gas

Serv. Co., 618 So.2d 874 (La.1993).

In Roman Catholic, 618 So.2d at 879, the supreme court concluded that:

[A]s a general rule of thumb, when a person sustains property damage
due to the fault of another, he is entitled to recover damages including
the cost of restoration that has been or may be reasonably incurred, or,

9
Louisiana Civil Code Article 2315(A) provides that “[e]very act whatever of man that
causes damage to another obliges him by whose fault it happened to repair it.”

16

at his election, the difference between the value of the property before
and after the harm.

(Emphasis added.) Notably, the court further remarked that:

If, however, the cost of restoring the property in its original condition is
disproportionate to the value of the property or economically wasteful,
unless there is a reason personal to the owner for restoring the original
condition or there is a reason to believe that the plaintiff will, in fact,
make the repairs, damages are measured only by the difference between
the value of the property before and after the harm.

Id. at 879-80.

In this case, the cost of restoring the property to its original condition is

undoubtedly disproportionate to the value of the property. The plaintiff put on no

evidence of the property’s value before the cutting of the timber, although their expert

arborist and forester estimated that the timber cut from the Subject Property had a

value of $13,359. However, the defendant’s expert testified that, even assuming the

inclusion of timber on the property, the land had a value of $2,382 per acre or a total

value of $9,433. Thus, and even assuming that the plaintiffs would have valued the

land at a higher figure as their estimates of the timber value exceeded those of the

defendants’ expert10, the restoration of the grade awarded by the trial court in the

amount of $288,998 was disproportionate to the value of the land even before the

removal of the timber. Further, we note that the defendant presented testimony

indicating that, if the land was left alone, without restoration work, merchantable

trees would once again grow within fifteen years.

Returning to the Roman Catholic, 618 So.2d at 879-80 analysis, we note that

the supreme court provided that disproportionate awards were not available “unless

there is a reason personal to the owner for restoring the original condition or there is

10
The defendant’s expert valued the timber removed at $8,640 whereas the plaintiff assumed
the value of the timber as $13,359.

17

a reason to believe that the plaintiff will, in fact, make the repairs[.]” In this case,

there is no such evidence requiring the disproportionate award. In light of the fact

that the plaintiffs have been recompensed for the timber on the property, they have

presented no evidence that the return of the property by way of considerable removal

of stumps and earthwork is necessary for reasons personal to the plaintiffs. Instead,

Mrs. Sagnibene only testified regarding her family’s historic use of this property for

hunting. However, the relevant testimony did not indicate that their hunting activities

were limited to the Subject Property nor was the testimony of the family members

conclusive as to the extent that it could no longer be used for this purpose.

Finally, in Hornsby, 902 So.2d at 367, the supreme court observed that for a

party attempting to prevail under the restoration remedy, the primary objective may

be “to restore the property as nearly as possible to the original state,” but that this

restoration may not be possible at times and may not be cost effective. Such was the

case in Hornsby, as the supreme court determined that, under the Roman Catholic

analysis, the plaintiff failed to present sufficient evidence of reasons personal to the

owner to justify the restoration damages.

However, the supreme court in Hornsby found sufficient evidence for the

alternate award of treble damages under La.R.S. 3:4278.1. The same situation is

present in this case. As we have explained, the plaintiffs’ evidence does not support

a general tort award pursuant to the Roman Catholic analysis. However, the evidence

warrants the award of treble damages and attorney fees under La.R.S. 3:4278.1(B).

In short, the record supports the trial court’s determination that the defendant cut and

removed the trees of another without consent and did so after being informed, on the

first day of cutting, that the plaintiffs asserted ownership of the property.

18

Furthermore, we note that, if the plaintiffs were allowed to recover under both this

tort theory and the available statutory recovery, this “would result in duplication of

damages.” Hornsby, 902 So.2d at 372 (Weimer, J., concurring).

Accordingly, we affirm the trial court’s award of statutory damages in the

amount of $40,077. We further affirm the award of attorney fees made under the

statute. However, we reverse that portion of the judgment awarding $288,988 in

damages for the restoration of the property.

DECREE

For the foregoing reasons, the judgment of the trial court is affirmed insofar as

it was entered in favor of Nolia Dupuis Sagnibene, both in her individual capacity and

as the independent administratrix of the succession of Angelo Sagnibene. However,

the judgment is vacated insofar as it awarded restoration damages in the amount of

$288,988. Judgment is recast, in part, as follows:

Judgment is granted herein in favor of Nolia Dupuis Sagnibene, in her
individual capacity and as the independent administratrix of the
succession of Angelo Sagnibene, and against Roy O. Martin Lumber
Company, L.L.C. in the sum of $40,077 together with legal interest from
date of judicial demand until paid.

That portion of the judgment awarding attorney fees and court costs is affirmed. All

costs of this proceeding are assessed equally between the appellees and the appellant.

AFFIRMED IN PART; REVERSED IN PART AND RENDERED.

19

COURT OF APPEAL

THIRD CIRCUIT

STATE OF LOUISIANA

Case No: 10-1331

ANGELO SAGNIBENE, ET UX.

VERSUS

ROY O. MARTIN LUMBER CO., LLC

COOKS, J. CONCURS IN PART AND DISSENTS IN PART

The majority finds no manifest error in the trial court’s finding that Plaintiffs

enjoy good title to the property and that defendant has not acquired title by any means

including thirty year acquisitive prescription. I fully agree with this portion of the

majority’s opinion. The majority also finds that Plaintiffs are only entitled to treble

damages based on the fair market value of the timber cut and removed from their

property along with attorney fees and that they are not entitled to the trial court’s

award for cost of restoration. While I agree that Plaintiffs are entitled to treble

damages and attorney fees for Defendant’s bad faith removal of their timber, I do not

agree with the majority’s decision limiting Plaintiffs’ recovery to these statutory

damages and I must, therefore, dissent in part.

Plaintiffs’ property has been left in an unusable condition covered with tall

stumps which remain after the bad faith, wrongful removal of trees by Defendant.

Plaintiffs’ have suffered far more in damages than the mere fair market value of the

timber unlawfully removed. I do not believe the legislature intended to limit

Plaintiffs’ recovery for damages to only recovery for the timber unlawfully removed.

Louisiana Revised Statutes 3:4281.1 provides a remedy for the valuation of the trees

as timber removed unlawfully and assesses a punitive penalty for Defendant’s

intentionally tortious action which includes the recovery of attorney fees and expert
1

fees. Nothing in the language of the statute limits or bars Plaintiffs’ recovery for

damages other than the loss of the trees which Plaintiffs’ may incur as a result of

Defendant’s trespass upon Plaintiffs’ property. As Justice Weimer wrote in his

concurrence in Hornsby v. Bayou Jack Logging, 04-1297 (La. 5/6/05), 902 So.2d 361,

372 (La. 2005):

Pursuit of treble damages for the fair market value of the timber
pursuant to LSA– R.S. 3:4278.1 did not preclude plaintiffs from the
right to pursue damages such as mental anguish or damage to the
property itself (i.e. damage to ditches, drainage, fences) which they may
have sustained because of the unauthorized cutting of the trees.

In Otwell v. Diversified Timber Services, Inc., 04-924 (La.App. 3 Cir. 1/26/05),

896 So. 2d 222, writ denied 05-467 (La. 4/22/05), 899 So.2d 575, our court awarded

general damages for loss of use to plaintiffs in that timber trespass suit in addition to

statutory treble damages and attorney fees. One of the plaintiffs in Otwell merely

enjoyed a usufruct over the property but our court found he was entitled to general

damages of $4200.00 for his loss of use of the property. Mrs. Sanders was also

awarded general damages in the amount of $1800.00 for her loss of use of the

property.

In Roman Catholic Church of Archdiocese of New Orleans v. Louisiana Gas

Serv. Co., 618 So.2d 874, 876 (La. 1993) (emphasis added) (citations omitted), the

Louisiana Supreme Court set forth the fundamental legal precepts in Louisiana

regarding full indemnification for damages sustained as a result of the fault of another

and the Constitutionally protected “Right to Property”:

Every act of man that causes damage to another obliges him by
whose fault it happened to repair it. La.Civ.Code art. 2315. One injured
through the fault of another is entitled to full indemnification for
damages caused thereby. In such a case, ‘[t]he obligation of defendant...
is to indemnify plaintiff–to put him in the position that he would have
occupied if the injury complained of had not been inflicted on him.’

Consequently, “[w]hen property is damaged through the legal

2

fault of another, the primary objective is to restore the property as nearly
as possible to the state it was in immediately preceding the damage...”

[]
These basic precepts have been reaffirmed and strengthened
indirectly by the Declaration of the Right to Property of our state
constitution. Article I, Section 4 of the Louisiana Constitution of 1974,
in pertinent part, provides:

“Every person has the right to acquire, own, control, use,
enjoy, protect, and dispose of private property.... Property shall not
be taken or damaged by the state or its political subdivisions except for
public purposes and with just compensation paid to the owner or into
court for his benefit...”

Thus our constitution does not simply require that the owner of
condemned or damaged property be compensated with the market value
of the property taken and severance damage to his remainder, but that he
be “compensated to the full extent of his loss’ and ‘placed in as good a
position pecuniarily as [he] enjoyed prior to the taking.” Accordingly,
justice, reason, and the principle of full reparation of Louisiana Civil
Code article 2315 require that where an individual’s property is
damaged unlawfully by a tortfeasor for no good reason, he be
compensated at least as fully as when his property is damaged by the
state for a public purpose pursuant to the owner’s obligation of
citizenship to the community.

I do not believe the legislature intended to abrogate these fundamental precepts

of property rights in enacting La.R.S. 3:4281.1. It should not be applied so as to

limit plaintiffs’ full recovery for all of their losses to the treble damages plus attorney

fees calculated on the fair market value of the trees as timber wrongfully cut. The

statute is clearly punitive in nature and sets forth punitive damages for a defendant’s

bad faith behavior for the loss of the timber. Hornsby, 902 So.2d at 369. Nowhere

does the statute limit or deny plaintiffs recovery of any other general damages to

which they may be entitled, recovery for which is the only means to make these

Plaintiffs whole.

Additionally, if Defendant faces only the payment of the fair market value of

the timber cut, plus treble damages and attorney fees, this case demonstrates that the

amount of such damages does little to discourage the intentional, bad faith, tortious

3

destruction of a plaintiff’s property by a willful defendant. The Defendant in this

case was told to stop cutting the trees but willfully proceeded to cut the timber and

leave Plaintiffs’ property in a deplorable condition. I believe the majority’s decision

sends the wrong message to the people of this state, i.e. that plaintiffs faced with a

similar scenario can only protect their property from eminent destruction/desecration

by threat of force against the illegal trespasser rather than rely on our courts to resolve

such disputes. When Defendant was told not to cut the trees because they were on

Plaintiffs’ property, Defendant could and should have proceeded to court if they truly

believed they were the rightful owner of the disputed property. Instead, they

proceeded to decimate Plaintiff’s property and get what they wanted to get for their

use. Defendants willfully deprived Plaintiffs of their constitutional right to “own,

control, use, enjoy, protect, and dispose of” their property and the limited award

proposed by the majority falls far short of full compensation for these Plaintiffs’ loss

and is an insufficient deterrent to stop such behavior in the future. Plaintiff is an

elderly lady who in all probability cannot live long enough to allow nature to return

her property to the state in which she was enjoying it before Defendant’s willful

trespass. This simply cannot be what the legislature intended. Such intent runs afoul

of our citizens’ constitutional property rights and our fundamental precepts of full

compensation for a loss occasioned by the fault of another.

Because the trial court awarded what it called restoration damages it did not

make an award for any other general damages. I believe this case should be

remanded in part to the trial court for a determination of an amount of general

damages for loss of use and for any other general damages to which Plaintiffs may

be entitled, including removal of the stumps. I respectfully dissent from that portion

4

of the decision which limits Plaintiffs’ recovery and leaves Plaintiffs without full

compensation for their loss.

5