Eola Properties, LLC v. Bayou Jack Logging, LLC

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

14-362

EOLA PROPERTIES, L.L.C.

VERSUS

BAYOU JACK LOGGING, L.L.C., ET AL.

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APPEAL FROM THE
TWELFTH JUDICIAL DISTRICT COURT
PARISH OF AVOYELLES, NO. 2012-8424-A
HONORABLE MARK A. JEANSONNE, DISTRICT JUDGE

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MARC T. AMY
JUDGE

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Court composed of Ulysses Gene Thibodeaux, Chief Judge, Marc T. Amy, and
Shannon J. Gremillion, Judges.

REVERSED IN PART. AFFIRMED IN PART.

Jerold Edward Knoll
The Knoll Law Firm
Post Office Box 426
Marksville, LA 71351
(318) 253-6200
COUNSEL FOR PLAINTIFF/APPELLEE:
Eola Properties, L.L.C.

Joseph J. Valencino, III
Burglass & Tankersley, L.L.C.
5213 Airline Drive
Metairie, LA 70001-5602
(504) 836-0416
COUNSEL FOR DEFENDANTS/APPELLANTS:
Kenneth Guillot
Bayou Jack Logging, L.L.C.
StarNet Insurance Company

AMY, Judge.

The plaintiff entered into a stumpage contract for the removal of certain

timber on a 180-acre tract in which it owned a one-half interest. The plaintiff filed

this matter, seeking damages for timber trespass upon an allegation that the

defendant logger and his limited liability company impermissibly cut timber

beyond that designated in the contract. Following a jury trial and, upon entry of a

judgment notwithstanding the verdict, the trial court found in favor of the plaintiff,

awarding damages for the timber trespass and for loss of aesthetic value of the

affected land. The trial court also awarded attorney fees. The defendants appeal.

For the following reasons, we affirm in part and reverse in part.

Factual and Procedural Background

The plaintiff in this case, Eola Properties, L.L.C., owns an undivided one-

half interest in a 180-acre tract of timberland (Tract A) in Avoyelles Parish. The

plaintiff entered into a September 30, 2010 “Timber Stumpage Sales Contract”

with Bayou Jack Logging Company for the removal of certain hardwood on that

property. The contract indicated that Bayou Jack Logging Co. was represented

within that contract by Kenneth Guillot, its owner.

According to the record, Mr. Guillot began moving equipment to Tract A in

May of 2011. Thereafter, cutting was conducted June through August, 2011.

Pertinent to this timeline is Mr. Guillot’s formation of Bayou Jack Logging, L.L.C.

in June 2011.1 Subsequent to the logging operations, however, William M. Tebow,

a co-owner of and the land manager for Eola Properties, explained that he learned

from John Earles, a neighboring farmer and Eola Properties’ tenant, that there may

have been a timber trespass on adjacent tracts of land solely owned by Eola

Properties. Upon investigation, it was discovered that the Bayou Jack Logging
1
The record reflects a June 2, 2011 filing date with the Secretary of State.

operations had been conducted not only upon the contracted lands in Tract A, but

also on a fifty-acre tract (Tract B), situated to the North of Tract A and on a

twenty-acre tract (Tract C), situated to the East of Tract A.

Eola Properties thereafter filed this matter against Mr. Guillot, Bayou Jack

Logging, L.L.C. and its insurer. Eola Properties sought damages for timber

trespass under La.R.S. 3:4278.1 2 and damages associated with the alleged

negligence leading to the trespass. The matter proceeded to trial, with the jury

returning a verdict on a verdict sheet divided into Section 1, entitled “Timber

Trespass” and Section 2, entitled “Negligence.”

With regard to the timber trespass claim brought under La.R.S. 3:4278.1, the

jury determined that “Bayou Jack Logging, LLC and/or its owner, Kenneth

Guillot” removed the timber without the consent of Eola Properties. The jury
2
Louisiana Revised Statutes 3:4278.1 was amended by 2011 La. Acts No. 226 during the
timeline alleged in this case. In its present form, and in pertinent part, La.R.S. 3:4278.1(A)
provides:

A. (1) 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 of this Section shall be liable to the owner, co-owner, co-heir, 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 fees and costs.

C. Whoever violates the provisions of Subsection A of this Section in
good faith shall be liable to the owner, co-owner, co-heir, 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, co-
owner, co-heir, or legal possessor of the trees.

D. If a good faith violator of Subsection A of this Section fails to make
payment under the requirements of this Section within thirty days after
notification and demand by the owner, co-owner, co-heir, or legal possessor, the
violator shall also be responsible for the reasonable attorney fees and costs of the
owner, co-owner, co-heir, or legal possessor.

2

valued the subject timber at $23,941.89 and found that the defendants should have

been aware that the “actions were without consent or direction of Eola

Properties[.]” The jury further concluded that the defendants failed to make

payment within thirty days of notification and demand for the timber. See La.R.S.

3:4278.1(D). Thus, the jury assessed attorney fees against the defendants in the

amount of $3,986.33.

As for Eola Property’s claim in negligence, the jury determined that the

defendants were negligent in harvesting the trees on the fifty-acre and the twenty-

acre parcels and that the negligence was a legal cause of the claimed damages. The

jury assigned fifty percent of the fault to the defendants and fifty percent to Eola

Properties.3 The jury denied Eola Property’s claim for loss of aesthetic value and

the cost of clearing land.

In response to the motion of Eola Properties, the trial court entered a

judgment notwithstanding the verdict. In that judgment, and with regard to the

claim for trespass under La.R.S. 3:4278.1, the trial court: 1) increased the

determined fair market value of the felled timber from $23,941.89 to $47,883.71

and calculated the treble damages awardable pursuant to La.R.S. 3:4278.1(C) to be

$143,651.13; and 2) increased the award of attorney fees from $3,986.33 to

$40,000.00.

With regard to the jury’s verdict on Eola Property’s negligence claim, the

trial court entered a JNOV: 1) increasing the fault allocated to the defendants from

fifty percent to ninety percent and, correspondingly, decreasing the fault assessed

to Eola Properties from fifty percent to ten percent; and 2) awarding damages for

loss of aesthetic value in the amount of $35,000.00 and subjecting the award to a

3
The defendants alleged that Eola Properties was at fault in providing unreliable
information regarding the location of its property lines.
3

ten percent reduction for the comparative fault assigned to Eola Properties. The

trial court maintained the judgment in all other respects.

The defendants appeal, arguing that the trial court erred in granting the

motion for judgment notwithstanding the verdict with regard to the apportionment

of fault, appropriateness of damages for loss of aesthetic value, value of attorney

fees proven, and appropriateness of the damages for the felled timber. The

defendants also contend that the trial court erred in awarding damages against Mr.

Guillot, individually.

Discussion

JNOV

The defendants question each aspect of the trial court’s granting of the

motion for JNOV, asserting that the evidence developed at trial supported the

jury’s verdict. Each of the components of the JNOV, addressed below, requires

reference to the considerations surrounding such a motion, provided by La.Code

Civ.P. art. 1811. Such a motion should be “granted only when the evidence points

so strongly in favor of the moving party that reasonable persons could not reach

different conclusions.” Forbes v. Cockerham, 08-0762, 08-770, p. 30 (La.

1/21/09), 5 So.3d 839, 857. On review, an appellate court uses the same criteria as

the trial court and “must first determine whether the facts and inferences point so

strongly and overwhelmingly in favor of the moving party that reasonable persons

could not arrive at a contrary verdict.” Id. at 858. In the event that the appellate

court determines that reasonable persons might reach a different conclusion, then

the jury’s verdict must be reinstated. Id.

We take the defendants’ arguments out of order and first address those

stemming from the claim under La.R.S. 3:4278.1.

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Damages

In this case, the Timber Stumpage Contract entered into by Eola Properties

pertained to timber on Tract A. However, it is largely uncontested that the

subsequent work on the properties resulted in an overcut onto Tracts B and C, both

wholly owned by Eola Properties. Thus, the petition was filed, in part under

La.R.S. 3:4278.1, which the supreme court has described as a punitive statute

enacted to impose a penalty upon those disregarding the property rights of timber

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

The defendants do not challenge the jury’s determination that certain timber on

Tracts B and C was cut without the permission of Eola Properties. Neither do the

defendants challenge the jury’s determination that the circumstances of the case

indicated that the defendants “should have been aware that its actions were without

[the] consent or direction of Eola Properties[,]” thus subjecting it to damages of

three times the fair market value of the trees felled. See La.R.S. 3:4278.1(C).

Instead, the defendants focus on the jury’s determination that the fair market

value of the overcut timber was $23,941.89. In urging its motion for JNOV, Eola

Properties suggested that the figure arrived at by the jury was in error as the only

expert testimony regarding valuation of the timber assessed a greater value. In

fact, the figure was approximately one-half of that arrived at by the expert forester

for Eola Properties, Donald Baker. Mr. Baker testified that the subject timber was

valued at $47,883.71. Dr. Nile Tahoop, the defendants’ own expert in forestry,

explained upon questioning by counsel for Eola Properties that the figure was

reasonable, although he suggested that the actual amount could be “slightly less

than that[.]” However, Dr. Tahoop stated that to “it would cost a lot of money to,

to really determine that[.]” Thus, the figure opined by Mr. Baker was the only

figure of fair market value provided by the record.
5

In entering the JNOV, the trial court determined that the jury’s award of

almost exactly one-half of the figure as to value demonstrated by the testimony

(within a few cents) likely revealed that the jury considered its apportionment of

one-half of the fault to Eola Properties. However, that apportionment of fault

related to the second part of the jury verdict sheet, which pertained to negligence.4

In this regard, the trial court found that the jury erred in merging the two theories

of recovery and, accordingly, reformed the judgment to award $47,883.71 as the

fair market value of the timber and, in turn, assess treble damages in the amount of

$143,651.13.

While the defendants suggest that the jury’s view was permissible under the

evidence permitted, our review of the evidence supports the trial court’s

determination. Again, the figure of $47,883.71 was the only valuation offered in

the record. Additionally, the figure arrived at by the jury does, in fact, suggest a

reduction by fifty percent, the percentage of fault the jury subsequently found

attributable to Eola Properties. However, as noted by the supreme court in

Hornsby, 902 So.2d at 369, the plain language of La.R.S. 3:4278.1, a punitive

statute, unambiguously indicates that “a person who is found to have unlawfully

cut timber belonging to another without consent is liable to the owner for three
4
In ruling on this aspect of the motion for JNOV, the trial court stated that:

[The jury] took the fifty percent of the negligence finding and they applied
it to the timber trespass statu[t]e. So they wholly confused the two elements,
those two elements of the jury verdict form, those two elements of damages if any.
They confused them and tried to fuss [sic] them together as using one, the
damages in one. They took that and then they self applied [sic] a fifty percent
rule, self applied [sic] a fifty percent deduction and placed that on the other
element of damages. One element of damages as y’all know streamed from the
negligence articles and the other element of the case or of damages streamed from
the statutory guidance, the timber trespass statu[t]e and I don’t think it’s proper to
fuss [sic] the two as the jury did or tried to do in this particular case. Not only did
they fuse it together but they tried to apply a deduction based upon their finding
of the, they believe fifty percent negligent [sic] on behalf of the plaintiff and I
think that’s probably harmless at this point whether I apply the fifty percent
deduction or they do, but I just think crossing the line and applying it from a
timber statu[t]e into the negligence section of the verdict form was improper. For
those reasons, I’ll grant it.
6

times the fair market value of the timber taken.” Accordingly, any confusion

between the statutory penalty authorized under La.R.S. 3:4278.1 and the

negligence aspect of the case placed before the jury was error.

Finally, we find no merit in the defendants’ contention that, in valuing the

timber, the jury may have taken into account that timber was taken from Tracts B

and C, but that a corresponding amount was not taken from Tract A. While true

that the parties had contracted for the timber on Tract A (for the price of

$40,000.00) and that timber may not have been, in fact, cut from Tract A, the

defendants’ argument confuses the issues. This suit was brought for the trespass

on to Tracts B and C, wholly owned by Eola Properties and not subject to a

stumpage contract. The fact that Tract A may have ultimately retained the amount

of timber cut from Tracts B and C is of no moment and was not the subject of any

question posed to the jury.

Accordingly, we find that the trial court appropriately entered the JNOV

with regard to the appropriate valuation of the statutory damages.

Attorney Fees

As noted above, the jury found that the defendants should have been aware

that the subject actions were without the consent or direction of Eola Properties

and that the defendants further failed to make payment within thirty days of

notification and demand. Thus, attorney fees were awardable under La.R.S.

3:4278.1(D). The jury awarded $3,986.33 for this item of recovery. On motion for

JNOV, the trial court increased that figure $40,000.00. The defendants now

challenge the trial court’s actions arguing that Eola Properties failed to introduce

evidence supporting the trial court’s upward deviation of the fee. In particular, the

defendants assert that Eola Properties failed to prove that the award was

reasonable. See Rivet v. State, Dep’t of Transp. & Dev., 01-0961 (La. 11/28/01),
7

800 So.2d 777 (wherein the supreme court explained that, even in the presence of a

contingency fee contract, an attorney is not entitled to recover a fee beyond that

which is determined to be reasonable). See also La.Rules Prof.Conduct, Rule 1.5.

We find no error in the trial court’s increase of attorney fees to the

$40,000.00 range. With regard to its claim for attorney fees, Eola Properties

presented testimony from an attorney who explained that he was familiar with the

trespass involved, the property involved, and the work involved in this litigation.

He stated that Eola Property’s counsel provided assistance pursuant to a

contingency fee arrangement that provided for an attorney fee of one-third of the

amount of recovery in the event suit was filed. Despite that evidence, the jury

awarded less than $4,000.00. The record supports a determination that this low

figure was not reflective of a reasonable fee under the circumstances of this case.

Instead, the record indicates that Eola Properties’ counsel developed the

matter now before the court, secured expert and lay witnesses (two of which were

procured and presented by deposition), and ultimately advocated during a two-day

jury trial involving a distinct theory of recovery for timber trespass. Additionally,

the attorney procured an award of $143,651.13 in treble damages under La.R.S.

3:4278.1, the statute under which an award of attorney fees is also available. Thus,

the $40,000.00 figure assessed by the trial court is reasonable, albeit less than the

one-third contingency agreement testified to at trial.

This argument lacks merit.

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Negligence

The defendants’ remaining arguments regarding the JNOV involve the trial

court’s reapportionment of fault and the award for loss of aesthetic value.

However, in addressing this issue, an error in the judgment is apparent. As

explained above, the plaintiff pursued both recovery under La.R.S. 3:4278.1 and

under a general negligence theory of recovery. These theories were not presented

as alternative theories. Instead, the two theories proceeded to the jury and,

following the JNOV, resulted in a judgment allowing recovery under both statutory

and civil code theories for Eola Properties. The parties submitted briefs on the

propriety of this dual recovery following the oral argument in this matter. Upon

consideration, we conclude that the trial court erred in entering judgment that

permitted recovery for both.

Notably, in Hornsby, 902 So.2d 361, the supreme court considered a case in

which the plaintiff sought recovery under La.R.S. 3:4278.1 and La.Civ.Code art.

2315. Citing its earlier jurisprudence in First South Production Credit Association

v. Georgia-Pacific, 585 So.2d 545 (La.1991), the supreme court observed that it

had previously “held that a landowner whose timber has been removed without his

consent may recover pursuant to La.R.S. 3:4278.1 or under general tort principles

set forth in La.Civ.Code art. 2315.” Id. at 365 (emphasis added).5 Thereafter, the

5
In concurrence, Justice Weimer noted that the focus of La.R.S. 3:4278.1 is on the value
of trees as timber, not on the value trees provide to the property upon which they are located. He
explained that, therefore, “recovery under the statute is limited to the fair market value of the tree
as timber- - not damages otherwise ordinarily associated with Article 2315 such as restoration
value, mental anguish, or diminution in value of the real estate.” Justice Weimer stated that:

To summarize, a plaintiff may bring an action for damage to trees alleging,
in the alternative, damages pursuant to Article 2315 or LSA-R.S. 3:4278.1 due to
a tree being cut, felled, destroyed, removed, or diverted. However, one cannot
combine Article 2315 damages and the treble damages allowed by LSA-R.S.
3:4278.1 as to the value of a tree because that would result in duplication of
damages. Recovery can only be had for the value of the tree based on one
provision or the other, not both. If one proceeds under LSA-R.S. 3:4278.1,
damages are limited to the fair market value of the tree as timber. . . .
9

supreme court determined that the record developed in the case before it did not

support a finding that an award for restoration costs in excess of the actual market

value of the land and the trees cut was justified. Id. Thus, the supreme court

reversed the award of damages previously awarded under the principles of general

tort law and entered an alternative award for damages for violation of La.R.S.

3:4278.1. See also Sagnibene v. Roy O. Martin, 10-1331 (La.App. 3 Cir. 6/1/11),

68 So.3d 32 (wherein a panel of this court cited Hornsby in affirming an award of

statutory damages, but in reversing an award of damages made under general tort

principles). But see Hooper v. Wisteria Lakes Subdivision, 13-50 (La.App. 1 Cir.

9/13/13), 135 So.3d 9; Mathews v. Steib, 11-0356, p. 8 (La.App. 1 Cir. 12/15/11),

82 So.3d 483, 488 (wherein the first circuit, without reference to Hornsby, found

that “in addition to the amount recoverable under La.R.S. 3:4278.1, damages are

recoverable, if supported by the record, for: the costs of removing stumps and

clearing the land after a timber trespass, . . . reforestation, . . . loss of aesthetic

value/buffer zone, . . . .and mental anguish”), writ denied, 12-0106 (La. 3/23/12),

85 So.3d 90.

In this case, it was not error for Eola Properties to proceed under both,

alternative theories of recovery. However, in light of supreme court jurisprudence,

we find that it was error for the trial court to enter judgment, permitting recovery

for both theories. Here, and even in the presence of the trial court’s determination

that damages for loss of aesthetic value had been proven, the statutory penalties

exceeded those available under the general negligence theory. Accordingly, the

trial court was required to enter judgment as to the statutory damages alone.

Below, we reverse the judgment to the extent it reflected an award for loss of

Alternatively, if one proceeds under Article 2315, the full measure of damages is
available depending upon the facts and circumstances of each case, but treble
damages are not available.

10

aesthetic value. This conclusion pretermits consideration of the defendants’

arguments regarding apportionment of fault and burden of proof regarding the tort

claim.

Personal Liability

In their remaining assignment of error, the defendants question the entry of

judgment against both Mr. Guillot, personally, and Bayou Jack, LLC. The

defendants note supreme court jurisprudence indicating that if a limited liability

company member’s conduct “was required by, or was in furtherance of, a contract

between the claimant and the LLC, that situation weighs against holding the

member personally liable for the conduct.” Ogea v. Merritt, 13-1085, p. 21 (La.

12/10/13), 130 So.3d 888, 904.

Undoubtedly, La.R.S. 12:1320(B) provides that: “Except as otherwise

specifically set forth in this Chapter, no member, manager, employee, or agent of a

limited liability company is liable in such capacity for a debt, obligation, or

liability of the limited liability company.” However, the factual background of this

case does not clearly fit within the above provision. As stated above, Bayou Jack

Logging, L.L.C. did not exist at the time Mr. Guillot entered into the stumpage

contract on behalf of Bayou Jack Logging Co. In fact, given the general timeline

of events, it is not clear at what point in the logging process the L.L.C. was

recorded. Neither is it clear at what point Mr. Guillot took the actions that have

been one of the issues in this case, i.e., establishing the property boundaries to

guide the logging operations that led to the timber trespass. In light of this

background, we find no error in the trial court’s decision to cast Mr. Guillot in

judgment, along with Bayou Jack Logging, L.L.C..

This assignment lacks merit.

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DECREE

For the foregoing reasons, the trial court’s judgment notwithstanding the

verdict for loss of aesthetic value to the plaintiff-appellee, Eola Properties, L.L.C.,

is reversed. The correlative apportionment of fault is also reversed. The remaining

aspects of the trial court’s judgment notwithstanding the verdict are affirmed.

Costs of this proceeding are assessed equally to the defendants—appellants, Bayou

Jack Logging, L.L.C., Kenneth Guillot, and StarNet Insurance Company, and to

the plaintiff-appellee.

REVERSED IN PART. AFFIRMED IN PART.

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