{ "id": 6136961, "name": "Jerry and Margaret LINEBARGER v. George OWENBY and Canal Wood Corporation", "name_abbreviation": "Linebarger v. Owenby", "decision_date": "2002-09-04", "docket_number": "CA 01-1206", "first_page": "61", "last_page": "69", "citations": [ { "type": "official", "cite": "79 Ark. App. 61" }, { "type": "parallel", "cite": "83 S.W.3d 435" } ], "court": { "name_abbreviation": "Ark. Ct. App.", "id": 13370, "name": "Arkansas Court of Appeals" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "75 Ark. App. 372", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6142136 ], "weight": 2, "year": 2001, "opinion_index": 0, "case_paths": [ "/ark-app/75/0372-01" ] }, { "cite": "216 Ark. 398", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1614249 ], "weight": 2, "year": 1950, "opinion_index": 0, "case_paths": [ "/ark/216/0398-01" ] }, { "cite": "326 Ark. 649", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 12023979 ], "weight": 2, "year": 1996, "opinion_index": 0, "case_paths": [ "/ark/326/0649-01" ] }, { "cite": "42 Ark. App. 90", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6137610 ], "weight": 2, "year": 1993, "opinion_index": 0, "case_paths": [ "/ark-app/42/0090-01" ] }, { "cite": "239 S.W. 760", "category": "reporters:state_regional", "reporter": "S.W.", "year": 1922, "opinion_index": 0 }, { "cite": "153 Ark. 133", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1362236 ], "year": 1922, "opinion_index": 0, "case_paths": [ "/ark/153/0133-01" ] }, { "cite": "55 Ark. App. 142", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6139807 ], "weight": 2, "year": 1996, "opinion_index": 0, "case_paths": [ "/ark-app/55/0142-01" ] }, { "cite": "Ark. Code Ann. \u00a7 18-60-102", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "weight": 2, "year": 1987, "pin_cites": [ { "page": "(a)" }, { "page": "(a)" } ], "opinion_index": 0 }, { "cite": "295 Ark. 533", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1893795 ], "weight": 2, "year": 1988, "opinion_index": 0, "case_paths": [ "/ark/295/0533-01" ] }, { "cite": "288 Ark. 439", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8721854 ], "weight": 2, "year": 1986, "opinion_index": 0, "case_paths": [ "/ark/288/0439-01" ] }, { "cite": "346 Ark. 130", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1111298 ], "weight": 2, "year": 2001, "pin_cites": [ { "parenthetical": "\"Arkansas follows the American Rule that attorney's fees are not chargeable as costs in litigation unless permitted by statute.\"" }, { "parenthetical": "\"Arkansas follows the American Rule that attorney's fees are not chargeable as costs in litigation unless permitted by statute.\"" } ], "opinion_index": 0, "case_paths": [ "/ark/346/0130-01" ] }, { "cite": "347 Ark. 184", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 683211 ], "weight": 2, "year": 2001, "opinion_index": 0, "case_paths": [ "/ark/347/0184-01" ] }, { "cite": "1 Ark. App. 235", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6141559 ], "weight": 2, "year": 1981, "opinion_index": 0, "case_paths": [ "/ark-app/1/0235-01" ] }, { "cite": "77 Ark. App. 88", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6136942 ], "weight": 3, "year": 2002, "opinion_index": 0, "case_paths": [ "/ark-app/77/0088-01" ] }, { "cite": "304 Ark. 551", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1880855 ], "weight": 2, "year": 1991, "opinion_index": 0, "case_paths": [ "/ark/304/0551-01" ] }, { "cite": "305 Ark. 109", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1916801 ], "weight": 3, "year": 1991, "opinion_index": 0, "case_paths": [ "/ark/305/0109-01" ] }, { "cite": "306 Ark. 105", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1900917 ], "weight": 6, "year": 1991, "pin_cites": [ { "page": "107" } ], "opinion_index": 0, "case_paths": [ "/ark/306/0105-01" ] }, { "cite": "310 Ark. 624", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1898858 ], "weight": 4, "year": 1992, "opinion_index": 0, "case_paths": [ "/ark/310/0624-01" ] } ], "analysis": { "cardinality": 753, "char_count": 14596, "ocr_confidence": 0.745, "pagerank": { "raw": 5.4033266686372354e-08, "percentile": 0.34017099066393447 }, "sha256": "d1db8d2cf885396437b7ed459495d9b198ffe97bfc74ba66f0f029c0ee4525ce", "simhash": "1:8b5ca60016414670", "word_count": 2445 }, "last_updated": "2023-07-14T22:52:26.957939+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Stroud, C.J., and Robbins, J., agree." ], "parties": [ "Jerry and Margaret LINEBARGER v. George OWENBY and Canal Wood Corporation" ], "opinions": [ { "text": "Josephine Linker Hart, Judge.\nAppellants Jerry and Margaret Linebarger sued their neighbor, appellee George Owenby, and also sued Canal Wood Company, the company that Owenby hired to cut timber, for the wrongful cutting of trees on their property. The trial judge found in favor of appellants and awarded them $5,000, which represented the difference in the value of their land before and after the trees were cut; $1,081.60 for the trees that had been removed; and $643.50 in clean-up costs. Appellants argue on appeal that the trial judge erred in not awarding them the replacement value of the trees; in not awarding them attorney fees; and in failing to treble the damage award. On cross-appeal, appellees argue that the judge erred in finding that they failed to obtain a survey prior to cutting the timber. We affirm on direct appeal, and we conclude that the cross-appeal is moot.\nAppellee George Owenby\u2019s property lies south of a heavily wooded, thirty-acre tract owned by appellants. Appellants purchased the northern twenty acres of their property in 1976 and built a weekend cabin thereon. The southern ten acres were purchased in 1993 to serve as a buffer between their cabin and neighboring lands. On January 1, 1998, Owenby sold the timber on his tract to appellee Canal Wood Corporation. Canal began cutting in the fall of 1998 and, in the process, cut 329 trees from the southernmost part of appellants\u2019 land. According to Jerry Linebarger, he had tried to tell Owenby for a number of years that a 1987 survey upon which Owenby relied to establish his boundary was incorrect and that there was a more recent survey available. As late as December 1997, when Owenby told Linebarger he was thinking of selling his timber, Linebarger reminded Owenby of the boundary problem and asked Owenby to call him before proceeding. Nevertheless, Owenby made his contract with Canal, and, when Canal noticed some evidence of a boundary different than the one Owenby had indicated, Owenby provided Canal with the 1987 survey. In reliance thereon, Canal marked the acreage in such a manner that trees were mistakenly cut on appellants\u2019 property.\nAppellants sued Owenby and Canal on October 29, 1998, in Van Bur\u00e9n County Chancery Court, alleging that Owenby and Canal trespassed on their property and destroyed trees that had been used for shade and beauty. Damages were sought for the \u201camount that would allow Plaintiffs to replace the trees,\u201d for attorney fees and costs, and for \u201call other relief to which they might be entitled.\u201d The case went to trial on January 18, 2001, and the judge viewed the reports and heard the testimony of three experts regarding the amount of damages that had been suffered by appellants. One expert, William Kelly, testified that the stumpage value of the cut trees was $1,081.60 and that it would cost $643.50 to prepare the site for re-planting. Another expert, real estate appraiser Wayne Coates, testified that the market value of appellants\u2019 property was $68,000 before the cutting and $62,000 afterward (which amount included $3,000 in clean-up costs). A third expert, Alfred Einert, placed a value on every tree that had been cut and determined the total value of the trees to be $44,702. This was the amount, sought by appellants as damages.\nOn May 3, 2001, the trial judge issued a letter ruling in favor of appellants. He determined that Canal had failed to obtain a survey prior to cutting the trees and had trespassed on the appellants\u2019 land as the result of Owenby\u2019s intentional failure to disclose the true circumstances surrounding the ownership of the property. However, the judge found that the $44,702 damage figure testified to by Alfred Einert was disproportionate in relation to the fair market value of the land. He therefore awarded appellants $5,000 for reduction in value of the land, based on Wayne Coates\u2019s testimony, plus $1,081.60 stumpage value and $643.50 in clean-up costs, based on William Kelly\u2019s testimony. He also declared that appellants should be awarded attorney fees, but in a subsequent letter ruling, he reluctantly concluded that the law did not permit him to either award attorney fees or treble the damages. A final order was entered on July 19, 2001, and, in addition to including the abovementioned findings, it awarded Canal judgment over against Owenby.\nFor their first argument on appeal, appellants contend that the trial judge erred in not awarding them the $44,702 replacement value of the trees. Arkansas courts have recognized that when ornamental or shade trees are injured, the use made of the land should be considered and the owner compensated by damages representing the cost of replacing the trees. White River Rural Water Dist. v. Moon, 310 Ark. 624, 839 S.W.2d 211 (1992); First Elec. Coop. Corp. v. Charette, 306 Ark. 105, 810 S.W.2d 500 (1991); Revels v. Knighton, 305 Ark. 109, 805 S.W.2d 649 (1991); Worthington v. Roberts, 304 Ark. 551, 803 S.W.2d 906 (1991); Fleece v. Kankey, 77 Ark. App. 88, 72 S.W.3d 879 (2002); Bowman v. McFarlin, 1 Ark. App. 235, 615 S.W.2d 383 (1981). See also Dan Dobbs, Dobbs Law of Remedies \u00a7 5.3(2) (2d ed. 1993). However, fact situations may arise in which recovery of the replacement cost of trees would yield a result grossly disproportionate to the fair market value of the land and thus would be an inappropriate measure of damages. First Elec. Coop. Corp. v. Charette, supra. See also Howard Brill, Arkansas Law of Damages \u00a7 30-3 (3d ed. 1996). The evidence in each case determines what measure of damages is to be used. See White River Rural Water Dist. v. Moon, supra.\nIn the case at bar, the judge agreed with appellants that their trees had been used for screening and shade, and he thus gave due consideration to the replacement measure of damages. However, he found that most of the trees cut were behind and over the crest of a hill from appellants\u2019 cabin, which tended to reduce the harm they suffered. He also found that the replacement cost of the trees would be disproportionate in relation to the fair market value of the land. He therefore declined to award appellants the $44,702 they sought.\nWe cannot say that the trial judge abused his discretion in making the damage award. Although he recognized that an award of replacement value might be possible, he declined to use that measure of damages because: 1) the cut trees were behind and over a crest from the cabin; and 2) the replacement value would be disproportionate to the land value. The location of the cut trees in relation to the cabin is a legitimate factor to consider. The trees provided only minimal shade, ornamental, or landscaping value to the appellants\u2019 residence. Further, if the full replacement value of $44,702 had been awarded for trees cut on 4.29 acres, appellants would have received 67% of the value of the 30 acres as a whole (including the cabin); further, such an award would exceed by over $43,000 the stumpage value of the trees cut.\nAppellants point out that in Charette, supra, the supreme court permitted an award of $8,300 for replacement of twenty-one trees on land that was worth, at most, $24,000. The court stated:\nIn the present case, the evidence showed that the appellant had destroyed a relatively small number of hardwood trees. The plaintiffs had intentionally left these trees growing along the roadside because they wanted a beautiful tree-lined road by their home. In effect, the trees that First Electric destroyed were part of the landscaping .... Under these facts, we cannot say that the trial court abused its discretion in instructing the jury on the replacement measure of damages. Certainly we can envision fact situations in which the recovery of the replacement cost of trees would yield a result grossly disproportionate to the fair market value of the land and would, therefore, be an inappropriate measure of damages, but this is not such a case.\nCharette, 306 Ark. at 107.\nThe case before us is distinguishable from Charette. There, the amount ultimately awarded was about 35% of the land value. Further, a small number of trees specifically used for landscaping were destroyed in Charette, while in this case, a large number of timber-like trees with little landscape or ornamental value were cut. Finally, the supreme court in Charette looked to whether the trial court had abused its discretion in making the award. The supreme court concluded, as we do here, that no abuse of discretion occurred.\nOur courts have said that the evidence in each case will determine the proper measure of damages. White River Rural Water Dist. v. Moon, supra. Given the particular evidence in this case, and affording the trial judge the same deference that was afforded in Charette, we affirm on this point.\nNext, appellants argue that the trial court should have awarded them attorney fees. As a general rule, attorney fees are not allowed in Arkansas unless expressly authorized by statute. Shelter Mut. Ins. Co. v. Kennedy, 347 Ark. 184, 60 S.W.3d 458 (2001). See also Cotten v. Fooks, 346 Ark. 130, 55 S.W.3d 290 (2001) (\u201cArkansas follows the American Rule that attorney\u2019s fees are not chargeable as costs in litigation unless permitted by statute.\u201d). There is no statute that authorizes an award of attorney fees under the circumstances in this case. Appellants cite an exception where the plaintiff has created or augmented a common fund or where assets have been salvaged for the benefit of others as well as himself (as in a shareholder derivative suit). See Millsap v. Lane, 288 Ark. 439, 706 S.W.2d 378 (1986). However, there was no common fund or conglomeration of assets created in this case. Appellants also cite Damron v. University Estates, Phase II, Inc., 295 Ark. 533, 750 S.W.2d 402 (1988), in which attorney fees were allowed, despite the fact that the statute involved in that case only allowed an award of \u201cexpenses.\u201d However, in Damron, certain bylaws agreed to by the parties provided for collection of attorney fees. Finally, appellants cite Ark. Code Ann. \u00a7 18-60-102(a) (1987), which provides that, if a person cuts down another\u2019s tree, he may be liable for treble damages \u201cwith costs.\u201d However, we have held that a statutory authorization for the award of costs does not include attorney fees. Roberts v. Feltman, 55 Ark. App. 142, 932 S.W.2d 781 (1996). Given these authorities, we agree with the trial court that attorney fees were not awardable in this case.\nAppellants\u2019 final argument is that the trial judge erred in not trebling the damage award. The judge found that the wrongful cutting in this case occurred through Owenby\u2019s intentional conduct. In cases of intentional wrongdoing involving the cutting of trees, the victim may recover treble damages. See Revels v. Knighton, supra; Ark. Code Ann. \u00a7 18-60-102(a) (1987). However, despite his finding of intentional conduct, the judge declined to award treble damages in this case, based on the idea that a court of equity cannot award treble damages. See Augusta Cooperage Co. v. Bloch, 153 Ark. 133, 239 S.W. 760 (1922); Gardner v. Robinson, 42 Ark. App. 90, 854 S.W.2d 356 (1993).\nWe uphold the trial judge\u2019s decision, although for a different reason. Appellants did not include a prayer for treble damages in their pleading, nor does the record reveal that they notified appellees at trial that they would be seeking exemplary damages. Further, there is no evidence that the issue was tried with the express or implied consent of the parties. In a similar situation involving double damages, the supreme court held that a defendant should be given adequate notice of the remedy he will be confronting, and the court reversed a trial judge\u2019s decision to award double damages on the day of trial, without them having been pled by the plaintiff. See Hackelton v. Larkan, 326 Ark. 649, 933 S.W.2d 380 (1996). Likewise, in this case, an award of treble damages would have been inappropriate in the absence of appellants pleading for them or the issue being tried with the express or implied consent of the parties.\nThe remaining issue is presented by appellees on cross-appeal. They challenge the trial judge\u2019s finding that they did not obtain a survey prior to cutting the trees. Arkansas Code Annotated section 15-32-101 (Repl. 2000) requires that, before any person cuts timber, he must procure a survey \u201cunless the land has been surveyed and the boundaries thereof ascertained and known.\u201d Appellees are correct that a survey had been obtained before the trees were cut (albeit an incorrect survey), yet we conclude that the trial judge\u2019s finding to the contrary has no bearing on the outcome of the case. The failure to obtain a survey would be relevant to the cutter\u2019s state of mind, i.e., whether his conduct was intentional or knowing. See generally Parker v. Penter, 216 Ark. 398, 225 S.W.2d 940 (1950). Because we have held that no exemplary damages may be awarded in this case, the appellees\u2019 state of mind as evidenced by whether a survey was procured, has no practical, legal effect on the case. Therefore, we consider this point moot.\nAffirmed on direct appeal; cross-appeal moot.\nStroud, C.J., and Robbins, J., agree.\nThe judge remembered Coates\u2019s testimony to be that the before-value of the land was $67,000 and the after-value was $62,000. We also note that Arkansas law provides that, when damages are awarded for the wrongful cutting of timber, the trial judge may award the diminution in value or the stumpage value, not both as was done in this case. However, the damage award is not challenged' in that regard on appeal, so we do not address the propriety of it.\nThe standard of review on this issue is not clear. It appears that a review of the trial court\u2019s choice of damage measures is better suited to the abuse-of-discretion standard, as was used by the supreme court in Charette, supra. But see Fleece v. Kankey, supra, in which this court said that the trial judge\u2019s disregard of the replacement measure of damages was \u201cclearly erroneous.\u201d In either case, some deference should be accorded to the trial court\u2019s decision.\nWe may affirm the trial court if it reaches the correct result, without regard to the reasoning it employed. See Hawks Enters Inc. v. Andrews, 75 Ark. App. 372, 57 S.W.3d 778 (2001).", "type": "majority", "author": "Josephine Linker Hart, Judge." } ], "attorneys": [ "Morgan & tester, P.A., by: M. Edward Morgan, for appellants.", "Jones, Flynn & Zuerker, P.L.L.C., by: R. Scott Zuerker and Kendall B. Jones, for appellee." ], "corrections": "", "head_matter": "Jerry and Margaret LINEBARGER v. George OWENBY and Canal Wood Corporation\nCA 01-1206\n83 S.W.3d 435\nCourt of Appeals of Arkansas Division IV\nOpinion delivered September 4, 2002\nMorgan & tester, P.A., by: M. Edward Morgan, for appellants.\nJones, Flynn & Zuerker, P.L.L.C., by: R. Scott Zuerker and Kendall B. Jones, for appellee." }, "file_name": "0061-01", "first_page_order": 87, "last_page_order": 95 }