Smith v. Parkerson Lumber, Inc.


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Docket Number: 2001-CA-00409-COA
Linked Case(s): 2001-CA-00409-COA ; 2001-CT-00409-SCT ; 2001-CT-00409-SCT ; 2001-CT-00409-SCT ; 2001-CA-00409-COA ; 2001-CT-00409-SCT ; 2001-CT-00409-SCT ; 2001-CT-00409-SCT ; 2001-CT-00409-SCT ; 2001-CT-00409-SCT

Court of Appeals: Opinion Link
Opinion Date: 12-14-2004
Opinion Author: King, C.J.
Holding: Affirmed in Part, Remanded in Part

Additional Case Information: Topic: Property damage - Timber trespass - Sufficiency of evidence - Section 95-5-10 - Additur - Expert testimony - Challenge for cause - Attorneys’ fees - Miss.R.Prof.Cond. 1.5
Judge(s) Concurring: Bridges and Lee, P.JJ., Irving and Myers, JJ.
Non Participating Judge(s): Chandler, Barnes and Ishee, JJ.
Dissenting Author : Griffis, J.
Procedural History: Jury Trial
Nature of the Case: CIVIL - REAL PROPERTY

Trial Court: Date of Trial Judgment: 01-03-2001
Appealed from: Choctaw County Circuit Court
Judge: Joseph H. Loper
Disposition: DAMAGES AWARDED IN THE AMOUNT OF $1,650 FOR THE CUTTING OF TREES
Case Number: 98-005L

Note: This Court upon its on motion grants rehearing in this matter. The court's previous opinion is withdrawn, and this opinion substituted therefor. The judgment of the Circuit Court of Choctaw County is affirmed in part and reversed and remanded in part for a proper determination of attorneys fees consistent with this opinion.

  Party Name: Attorney Name:  
Appellant: Ted Smith




ANDRE FRANCIS DUCOTE WAYNE E. FERRELL



 

Appellee: Parkerson Lumber, Inc. JEFFREY STEPHEN MOFFETT H. WESLEY WILLIAMS  

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Topic: Property damage - Timber trespass - Sufficiency of evidence - Section 95-5-10 - Additur - Expert testimony - Challenge for cause - Attorneys’ fees - Miss.R.Prof.Cond. 1.5

Summary of the Facts: The Court upon its own motion grants rehearing in this matter, and this opinion is substituted for the original opinion. Ted Smith sued Parkerson Lumber, requesting damages for the cutting of trees on his property, the diminution of property value, and loss of enjoyment. The jury absolved Parkerson of liability for cutting the southwest corner of Smith’s land, but found him liable for accidentally cutting the fifty-foot strip. Smith was awarded damages in the amount of $1,650. The judge entered an order awarding Smith attorney fees in the amount of $959.06 and expert witness fees in the amount of $450. Smith appeals.

Summary of Opinion Analysis: Issue 1: Sufficiency of evidence Smith argues that the evidence was sufficient to establish Parkerson’s timber trespass, his willful cutting of trees from two sections of his property, as well as the committed common law tort of trespass. It is for the jury to weigh all the evidence and testimony and to determine what weight to give each witness’s testimony. In this case, the jury chose to believe that testimony which absolved Parkerson of liability as to the southwest corner, while determining he was liable for cutting the fifty-foot strip. This finding was supported by substantial credible evidence. Smith also argues that the verdict did not take into account his claim for common law damages of trespass, loss of enjoyment of use, and diminution in value. Section 95-5-10 provides it is the exclusive remedy for the wrongful cutting of trees although it does not limit actions or awards for other damages caused by a person. Other damages to which this statute refers would be to property or persons incurred during the cutting of trees, unrelated to the destruction or damage of the trees. Although the Smiths testified that Parkerson left deep ruts on the property, there were no other damages mentioned unrelated to the destruction of trees. There is nothing in the record to indicate specific monetary loss caused by the ruts in the property. Smith’s common law claims must fail as he has not proven any type of damage unrelated to the destruction of trees. Issue 2: Additur Smith argues that the damages awarded by the jury were insufficient and an inadequate relief for common law trespass and wrongful cutting of timber. Additurs are awarded based upon a finding by the judge that the verdict was so unreasonable in amount as to be out outrageous, and so against the overwhelming weight of the evidence that the jury must have been influenced by bias, prejudice or passion. The jury awarded Smith slightly more than double the fair market value plus reforestation costs for the timber cut on the fifty-foot tract. The jury was apparently not convinced of Parkerson’s liability as to the southwest tract, and thus did not award damages. Since the evidence does not lead to the conclusion that the verdict was contrary to the evidence, the court did not abuse its discretion in denying Smith’s motion for an additur. Issue 3: Expert testimony Smith argues that the court’s refusal to allow him to present evidence through his expert, or by cross-examination of Parkerson’s expert, regarding industry standards and the duties of those cutting timber was an abuse of discretion. To be admissible, expert testimony must be helpful to the trier of fact, in the resolution of the ultimate issue. Any testimony regarding whether Parkerson’s conduct was “reckless” or “willful” was inadmissible as it was not helpful to the trier of fact. Issue 4: Challenge for cause Smith argues that the court abused its discretion when it refused to grant him a new trial based on the court’s refusal to strike a prospective juror for cause. Smith used a peremptory challenge to strike the juror, and she was therefore not a member of the jury impaneled. Smith has made no showing that his trial was unfair because he had to use a peremptory strike for the juror rather than one for cause. Issue 5: Attorneys’ fees Smith argues that the court erred by granting him only $959.06 in attorney’s fees. Smith petitioned the court for the payment of $34,875 in attorney’s fees and $650 in expert witness’s fees. The judge failed to make a proper analysis of whether the requested the attorneys fees were reasonable. The judge’s method of calculation was to determine the percentage of damages Smith recovered from the jury verdict compared to the total amount of alleged damages, and awarded this percentage of requested attorneys fees. The reasonableness of an attorney's fee award is determined by reference to the factors set forth in Rule 1.5 of the Mississippi Rules of Professional Conduct. Therefore, the case is reversed and remanded for a determination of attorney fees.


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