Cowper v. Collier

Decision Date27 December 1999
Docket NumberNo. 32A01-9812-CV-441.,32A01-9812-CV-441.
Citation720 N.E.2d 1250
PartiesNorman R. COWPER, Appellant-Respondent, v. Ray A. COLLIER and John D. Collier, Appellees-Petitioners.
CourtIndiana Appellate Court

Don A. Tabbert, Wm. D. Lalley, William W. Matthews, Tabbert Hahn Earnest & Weddle, Indianapolis, Indiana, Attorneys for Appellant.

Gregory W. Black, Deckard & O'Brien, Danville, Indiana, Attorney For Appellees.

Jeffrey A. Modisett, Attorney General of Indiana, Jon Laramore, Deputy Attorney General, Indianapolis, Indiana, Attorneys for Amicus Curiae.

OPINION

BAILEY, Judge

Case Summary

Appellant Norman Cowper ("Cowper") appeals from the trial court's judgment, which reversed and vacated an order entered by the Indiana Natural Resource Commission ("NRC"). The NRC, acting under the Indiana Timber Buyer's Act ("TBA"), IND.CODE § 25-36.5-1-3.2, affirmed the decision of an administrative law judge ("ALJ") which concluded that there was no enforceable contract between Cowper and Ray and John Collier ("Tree Buyers") and that Tree Buyers were liable to Cowper. Tree Buyers petitioned the trial court for judicial review. After reviewing the findings promulgated by the NRC, hearing oral argument by the parties, and considering the parties' proposed findings of fact and conclusions of law, the trial court determined that a contract existed between Cowper and Tree Buyers, and that the TBA did not extend jurisdiction to the NRC to interpret that written contract. We reverse the trial court in part and remand to the NRC to determine damages.

Issue

Cowper raises three issues on appeal which we consolidate and restate as follows:

Whether the NRC erred by granting relief to Cowper with respect to those trees acquired in excess of the number provided for by contract.
Facts and Procedural History

Cowper owns approximately 50 acres of land, much of it covered with timber. (R. 531). In 1993, a storm damaged numerous trees located on Cowper's land. (R. 531). Cowper wanted to sell the damaged timber. (R. 531). Cowper contacted several loggers and timber companies regarding the sale of the damaged timber. (R. 979-983, 988, 992). From these contacts, Cowper learned that he would need to also sell undamaged trees to make the sale worthwhile for loggers. (R. 584).

On February 3, 1994, Cowper entered into a contract with Tree Buyers, which reads in pertinent part as follows: [italics indicate handwritten terms]

TIMBER CONTRACT No. 025 Norman R. Cowper of Morgan County State of Ind[.], hereby sells to JOHN COLLIER LOGGING, R.R. 1 Box 413, Coatsville, IN 46121 for the sum of Twelve Thousand Five Hundred Dollars ($12,500.00) the receipt of Twelve Thousand Five Hundred Dollars ($12,500.00) of which amount is hereby acknowledged, the standing timber described as follows 18" and up on stump

the attached document shall be a part of this contract the same as if printed here located upon the following described real estate in Morgan County, State of Ind[.] to-wit SE1/4, SE1/4 SEC. 36 T13 R1W (40A) AND PART of NE1/4, NE1/4 SEC. 1 T12 R1W (12A MORE OR LESS) JOHN COLLIER LOGGING, their agents, subcontractors, and assigns shall have the full and free rights of ingress and egress with trucks, tractors, and other logging equipment, to and from and upon the land of the sellers, for the purpose of cutting, felling and removing said timber and unless otherwise stated in this contract, is granted a period of 15 months from this date to remove same. The seller and owner of said land on which timber is located expressly warrants title and right to sell the timber herein referred to, and that there are no liens or mortgages of any kind against same. In event original owner and seller desires to sell above mentioned farm, and the timber belonging to JOHN COLLIER LOGGING, has not been removed he must reserve same in deed to new owner, showing JOHN COLLIER LOGGING as timber. Witness One hand this 3 day of Feb[.], 1994 Witness Ray Collier [signature] Norman R. Cowper [signature] [page 1]

The handwritten document incorporated by reference in the first page of the contract reads as follows:

FEB. 3, 1994

MARTINSVILLE, IN 46151

TOTAL NUMBER OF TREES 18" IN DIAMETER OR GREATER IS 175 PLUS 26 16" DIAMETER OR LARGER THAT ARE STORM DAMAGED.

ADDITIONAL STORM DAMAGED TREES NEAR THE RESIDENCE WILL BE FELLED AS AGREED.

COLLIER TIMBER WILL FURNISH AN INSTALL 36 LINEAL FEET OF 24" DIAMETER 16 GA. CORRUGATED AND GALVANIZED STEEL CULVERT NECESSARY SITE PREPARATION, AND AT LEAST 100 TON OF # 1 CRUSHED STONE.... SAID ROAD AND CULVERT IS FOR INGRESS AND EGRESS DURING THE LOGGING OPERATION AND IS TO REMAIN FOR OWNERS USE AFTER THIS CONTRACT EXPIRES. THIS ROAD AND ALL OTHER HAUL ROADS SHALL BE REPAIRED AT THE END OF LOGGING OPERATIONS. . . . . Ray Collier [signature] Norman R. Cowper [signature]

[page 2]

(R. 26-27). Tree Buyer (Ray Collier) filled in the amount to be paid for the trees, the phrase "18" and up on stump," as well as the phrase "the attached document shall be a part of this contract as if printed here." (R. 603, 1454). The second page of the above contract, with exception of the number of trees to be logged, was handwritten and prepared by Cowper prior to the date of signing. (R. 606, 765). Cowper and Tree Buyer (Ray Collier) discussed the number of trees to be inserted in the blanks, the numbers "175" and "26" were then inserted, each page signed and stapled. (R. 766). Several counts of stumps, taken after Tree Buyers had completed the logging of Cowper's property, revealed that approximately 500 undamaged trees of 18 inches in diameter were taken. (R. 202). Cowper contends that the contract limited Tree Buyers to 175 undamaged trees of 18 inches and up, and 26 damaged trees of 16 inches and up. (R. 532). Tree Buyers contend that the contract did not limit the number of trees 18 inches and up on the stump. (R. 532).

Cowper filed a complaint with the NRC, alleging that the parties had contracted for the removal of no more than 175 trees 18 inches in diameter and sought treble damages for the approximately 325 trees which were taken without his permission. (R. 853). This matter was tried before the ALJ for the NRC. The ALJ ruled that between the parties no valid written contract existed. (R. 208).

The ALJ considered the following findings in assessing the fair market value of Cowper's timber:

42. Cowper had one prior experience in selling timber off his property in 1982, when he sold 350 trees for approximately $20,000, an average of $55-$60 per tree.
43. While it is true that the timber cutter in 1982 would have picked the best 350 trees he could find at that price, to find that Cowper intended to sell over 500 trees for approximately $15,000 in compensation, the trier of fact would have to conclude that Cowper was willing to sell his marketable trees for ½ that amount per tree.
44.... [T]here is no evidence in the record from which a conclusion can be drawn that Cowper would sell his trees for 50% of the per-tree price some 12 years later in an inflationary economy.
45. Conversely, the trees involved in the cutting were trees that were passed over 11 or 12 years before this cutting and with the exception of some quality oak trees, were not high grade timber.
....

The ALJ also considered the testimony of two consultant foresters, Hudson, who had walked Cowper's property and derived the value of the trees from the remaining stumps, and Stambaugh, who reviewed the methodology employed by Hudson. (R. 203-04). Additionally, the ALJ heard testimony from Kelly, a forester and timber buyer specializing in veneer quality timber. (R. 205).

83. Based on the stump size, species, and normal tapering, Hudson estimated the stumpage value at approximately $50,000.
....
89. Stambaugh agreed with the approach and methodology employed by Hudson.
....
93. Kelly looked at the timber while it was standing.
94. Kelly was not interested in submitting a bid because only white oak was of veneer quality and most of the white oaks had been taken during the first cutting 10 years ago.
95. Kelly told Cowper he might get $10,000....
....
99. The evidence presented by [Tree Buyers] and their bookkeeper indicated that the value received at mill was just under $50,000.
(R. 204-05). The ALJ concluded that "a fair stumpage value would appear to be approximately $30,000." (R. 205). The ALJ also approached valuation on a per-tree basis. (R. 206).
116. Even adjusting for wind shake, some fire damage, and a lower percentage of veneer quality trees, the fair market value would be in excess of $60 per tree.
117. At $65 per tree plus $600 for the value of the storm damaged trees [undisputed by the parties], the stumpage value would be approximately $33,000.

(R. 206). The ALJ concluded that the fair market value of Cowper's cut timber was $32,000, and that Cowper had been underpaid by $16,000. (R. 207). The ALJ awarded Cowper treble damages in the amount of $48,000. (R. 208-09).

In ruling, the ALJ relied upon IND.CODE § 25-36.5-1-3.2, which provides in pertinent part as follows:

(b) The department [NRC] may under IC 4-21.5-3-8 commence a proceeding against a timber cutter or buyer if there is reason to believe that:
(1) the timber buyer or timber cutter has acquired timber from a timber grower under a written contract for the sale of the timber without payment having been made to the timber grower as specified in the contract; or
(2) if:
(A) there is no written contract for the sale of the timber; or
(B) there is a written contract for the sale of the timber but the contract does not set forth the contract price for the timber;
the timber buyer or timber cutter has cut timber or acquired timber from the timber grower without payment having been made to the timber grower equal to the value of the timber as determined under IC 26-1-2.
....
(f) The complaint served ... to commence a proceeding under this section may seek the following:
.
...

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