McCain v. Memphis Hardwood Flooring Co., 95-CA-00921-SCT.

• Decision Date: 04 June 1998
• Docket Number: No. 95-CA-00921-SCT.,95-CA-00921-SCT.
• Citation: 725 So.2d 788
• Parties: William A. McCAIN, Individually and as Guardian of the Estate of Joseph Pickney McCain v. MEMPHIS HARDWOOD FLOORING COMPANY, a Corporation.
• Court: Mississippi Supreme Court

725 So.2d 788

William A. McCAIN, Individually and as Guardian of the Estate of Joseph Pickney McCain v. MEMPHIS HARDWOOD FLOORING COMPANY, a Corporation.

No. 95-CA-00921-SCT.

Supreme Court of Mississippi.

June 4, 1998.

Rehearing Denied August 13, 1998.

Arnold F. Gwin, Floyd M. Melton, Jr., Greenwood, Attorney for Appellant.

Lawrence D. Wade, Greenville, Randall Elliott Day, III, Hollandale, Attorney for Appellee.

Before PRATHER, P.J., and BANKS and SMITH, JJ.

BANKS, Justice, for the Court:

¶ 1. Here we are called upon to construe the limitations period provided for our statute governing the wrongful cutting of trees. We conclude that the statutory scheme bars this cause of action in its entirety. Accordingly we reverse the judgment of the trial court and render judgment for the defendant.

I.

¶ 2. On August 5, 1993, the appellants, Joseph Pickney McCain and William A. McCain, individually and as Guardian of Joseph Pickney McCain, filed a formal complaint against Memphis Hardwood Flooring Corporation ("Memphis Hardwood") and Ruth K. Meeks for cutting trees and removing timber from the appellants' property without consent. Memphis Hardwood cut the timber between May and July of 1991, but McCain testified that he did not learn that the timber was cut until July, 1993. Memphis Hardwood had purchased two tracts of land from Cooper "Pete" Misskelley on March 21, 1991 adjacent to land owned by the McCains. Misskelley had purchased the two tracts of land a few days earlier from Ruth Meeks. The McCains' complaint stated that Memphis Hardwood through its agents intentionally and wilfully cut down trees and removed timber from their property without consent in violation of Miss.Code Ann. § 95-5-10 (1994).

¶ 3. A declaratory judgment was rendered by the Circuit Court of Carroll County, Mississippi. That Court held that double recovery under § 95-5-10(1) was controlled by the one year statute of limitation under § 15-1-33. Under the facts of this case, however, the Circuit Court found that ordinary compensatory damages were available under § 95-5-10(1) and that the applicable statute of limitations was § 15-1-49.

¶ 4. The Circuit Court ordered a judgment against Memphis Hardwood for $37,101, and dismissed all charges against Ruth Meeks. The McCains subsequently filed a motion to alter or amend the judgment. They claimed that the contingency fee arrangement contracted for between the plaintiffs and their attorney does not limit the Court's discretion in awarding attorney's fees. The Circuit Court disagreed and overruled the motion on August 4, 1995. The McCains' notice of appeal was filed on August 5, 1995. Memphis Hardwood filed a notice of cross-appeal on September 11, 1995.

II.

a.

WHETHER THE ONE-YEAR LIMITATION EXPRESSED IN MISSISSIPPI CODE ANN. § 95-5-29 APPLIES TO § 95-5-10 TO LIMIT RECOVERY WHEN A SUIT IS BROUGHT 12 MONTHS AFTER THE CUTTING OF TREES, AND WHETHER THE PLAINTIFFS

WERE ENTITLED TO DOUBLE THE FAIR MARKET VALUE OF THE TREES, THE FAIR MARKET VALUE OF THE TREES, REFORESTATION COSTS, OR ANY OTHER AWARD.

¶ 5. This issue concerns that application of two statutes, Miss.Code Ann. § 95-5-29 (1994) and Miss.Code Ann. § 95-5-10 (1994). These statutes address the topic of trespass or destruction of trees without the consent of the owner.

(1) If any person shall cut down, deaden, destroy or take away any tree without the consent of the owner of such tree, such person shall pay to the owner of such tree a sum equal to double the fair market value of the tree cut down, deadened, destroyed or taken away, together with the reasonable cost of reforestation, which cost shall not exceed Two Hundred Fifty Dollars ($250.00) per acre. The liability for the damages established in this subsection shall be absolute and unconditional and the fact that a person cut down, deadened, destroyed or took away any tree in good faith or by honest mistake shall not be an exception or defense to liability. To establish a right of the owner prima facie to recover under the provisions of this subsection, the owner shall only be required to show that such timber belonged to such owner, and that such timber was cut down, deadened, destroyed or taken away by the defendant, his agents or employees, without the consent of such owner. The remedy provided for in this section shall be the exclusive remedy for the cutting down, deadening, destroying or taking away of trees and shall be in lieu of any other compensatory, punitive or exemplary damages for the cutting down, deadening, destroying or taking away of trees but shall not limit actions or awards for other damages caused by a person.

(2) If the cutting down, deadening, destruction or taking away of a tree without out the consent of the owner of such tree be done willfully, or in reckless disregard for the rights of the owner of such tree, then in addition to the damages provided for in subsection (1) of this section, the person cutting down, deadening, destroying or taking away such tree shall pay to the owner as a penalty Fifty-five Dollars ($55.00) for every tree so cut down, deadened, destroyed or taken away if such tree is seven (7) inches or more in diameter at a height of eighteen (18) inches above ground level, or Ten Dollars ($10.00) for every such tree so cut down, deadened, destroyed, or taken away if such tree is less than seven (7) inches in diameter at a height of eighteen (18) inches above ground level, as established by a preponderance of the evidence. To establish the right of the owner prima facie, to recover under the provisions of this subsection, it shall be required of the owner to show that the defendant or his agents or employees, acting under the command or consent of their principal, willfully and knowingly, in conscious disregard for the rights of the owner, cut down, deadened, destroyed or took away such trees.

(3) All reasonable expert witness fees and attorney's fees shall be assessed as court costs in the discretion of the court.

Miss.Code Ann. § 95-5-10 (Rev.1994). (emphasis added).

¶ 6. Miss.Code Ann. § 95-5-29 operates as a statute of limitation for penalties imposed under the chapter.

An action for any specific penalty given by this chapter may be prosecuted in any court of competent jurisdiction within twelve months from the time the injury was committed, and not after; and a recovery of any penalty herein given shall not be a bar to any action for further damages, or to any criminal prosecution for any such offense as herein enumerated. A party, if he so elect, may, under any of the provisions of this chapter, claim less than the penalty given.

Miss.Code Ann. § 95-5-29 (1994). (emphasis added).

¶ 7. The McCains claim that § 95-5-29 applies to § 95-5-10, which imposes the one-year limitation, only with reference to a specific penalty identified in the chapter. They offer as authority decisions which preceded the legislative enactment of § 95-5-10 which hold that statutory penalties are not the exclusive remedy for a plaintiff that has suffered losses because of trespass or cutting of trees. Day v. Hamilton, 237 Miss. 472, 115 So.2d 300 (1959) held that Miss.Code of 1942, §§ 1074-1087, do not function as an exclusive remedy. In Day, the Court treated a statute which imposed a penalty for trees destroyed without consent of the owner. The Court observed, "[t]hese statutes do not indicate any legislative intent that the statutory penalty would be the exclusive remedy." Id. at 478, 115 So.2d at 303. (See also Evans v. Broadhead, 233 So.2d 771 (Miss.1970) indicating that the one-year limitation in a statute applied only to a specific penalty in the statute, not to damages or trespass for which there was no specific penalty).

¶ 8. Additionally, the McCains cite several cases for the proposition that the legislature has authorized suits where a plaintiff could ask for statutory penalties and actual damages in a single cause of action. Duett v. Pine Mfg. Co., 209 Miss. 830, 48 So.2d 490 (1950); Floyd v. Williams, 198 Miss. 350, 22 So.2d 365 (1945).

¶ 9. Floyd, Duett, and Day each involved application of the same statute, Miss.Code of 1942 § 1075.¹ A careful reading of this 1942 statute confirms the appellants' contention that the legislature did not intend for § 1075 to serve as an exclusive remedy. The phrase "exclusive remedy" is not mentioned anywhere in the section. That changed, however, with the adoption of Miss.Code Ann. § 95-5-10 (1994), which is the subject of the instant appeal which expressly declared an exclusive remedy.

The remedy provided for in this section shall be the exclusive remedy for the cutting down, deadening, destroying or taking away of trees and shall be in lieu of any other compensatory, punitive or exemplary damages for the cutting down, deadening, destroying or taking away of trees but shall not limit actions or awards for other damages caused by a person.

Miss.Code Ann. § 95-5-10(1) (1994). (emphasis added).

¶ 10. This statute was enacted in 1989 and all other statutory authority related to trees cut without the consent of the owner was repealed. Memphis Hardwood cites Greenlee v. Mitchell, 607 So.2d 97 (Miss.1992) in support of the contention that Miss.Code Ann. § 95-5-10 (1994) is an exclusive remedy. While the opinion rendered in Greenlee does not apply § 95-5-10, it does characterize the statute as an exclusive remedy. "Mississippi Code Annotated § 95-5-10 (Supp.1991) sets out an exclusive remedy for cutting trees without consent...." Id. at 111.

¶ 11. The McCains claim that if § 95-5-10 provides an exclusive remedy it is a limited remedy. The remedy "... shall not limit actions or awards for other damages caused by a person." The appellants argue that they have suffered other damages in the form of reduction to the value of trees remaining on their land subsequent to the impermissible cutting. Also, testimony at trial indicated that the value of the trees remaining on the appellants' land was diminished...