Wimberly v. Barr

• Citation: 359 S.C. 414,597 S.E.2d 853
• Decision Date: 01 June 2004
• Docket Number: No. 3817.,3817.
• Court: South Carolina Court of Appeals
• Parties: John D. WIMBERLY, Appellant/Respondent, v. Wayne BARR, Steve Rutland and Roy Rutland, d/b/a South Willow Logging and Roy Rutland Logging and Southeastern Forest Products, Inc., Respondents/Appellants.

359 S.C. 414

597 S.E.2d 853

John D. WIMBERLY, Appellant/Respondent, v. Wayne BARR, Steve Rutland and Roy Rutland, d/b/a South Willow Logging and Roy Rutland Logging and Southeastern Forest Products, Inc., Respondents/Appellants.

No. 3817.

Court of Appeals of South Carolina.

Heard February 11, 2004.

Decided June 1, 2004.

Todd Raymond Ellis, of Columbia, for Appellant-Respondent.

Arthur E. White, Jr., of W. Columbia, and Robert Buffington, of Columbia, for Respondents-Appellants.

CURETON, A.J.:

John D. Wimberly brought this action against Wayne Barr; Steve Rutland and Roy Rutland, doing business as South Willow Logging and Roy Rutland Logging; and Southeastern Forest Products, Inc., for cutting timber on his property without permission. The jury awarded actual and punitive damages. After post-trial motions, the trial judge decreased the amount of actual damages to equal three times the value of the timber pursuant to S.C.Code Ann. § 16-11-615 (2003)¹ (the timber statute). The punitive damages were not altered. Wimberly appeals the reduction of the actual damages. The Rutlands and the logging companies (collectively referred to as Respondents) appeal the failure to reduce the punitive damages.² We affirm in part and reverse in part.

FACTS

Wimberly owns 157 acres of wooded property in Orangeburg County which he leases for hunting. Barr is an adjoining landowner. In 1999, Barr sold the harvestable timber on thirty-five acres of his property to Southeastern. Southeastern contracted with the Rutlands to perform the logging.

There was some confusion over the exact location of the dividing line between the properties. Although there was a cleared roadway and flags on Wimberly's property, neither the road nor the flags delineated the property line with Barr. Wimberly was concerned that the loggers would cut timber from his property. On at least three occasions, either Wimberly or his lessees informed Barr of the location of the property line.

Barr testified that he told Mike Grooms, the owner of Southeastern, and Roy Rutland that they were not to cut up to the flagged tract of land. The loggers cut right up to the flagged area, which resulted in the removal of timber from approximately 4.89 acres of Wimberly's property.

Wimberly brought this action against Respondents, alleging damages under theories of trespass, negligence, unfair trade practices, conversion, and violation of the criminal statute against removing timber without permission, S.C.Code Ann. § 16-11-580 (2003).³ Wimberly informed the court before trial that he was not going forward on the claim under that statute.

Wimberly presented several expert witnesses to establish his damages totaling approximately $39,000. Charles Hills, a registered forester, testified that the timber cut from Wimberly's property had a fair market value of $4,163.63. Hills also estimated that it would cost $1,841 to prepare and replant Wimberly's land. Rudy Matthews, an outdoorsman, testified regarding the reduced value of the lease for recreational use of the property. Matthews testified that because the timber on Wimberly's property had been reduced, the property could accommodate fewer hunters. Mathews estimated that had the timber not been harvested, Wimberly could have accommodated nine to ten hunters at $400 per year each. The loss of lease value was estimated at $22,500. Rogers Cobb, a real property appraiser, opined the property was worth $113,000 prior to the harvesting of the timber and approximately $10,958 less after the harvesting.

Respondents moved for a directed verdict, arguing, in part, that Wimberly's damages should be limited to three times the value of the timber cut pursuant to S.C.Code Ann. § 16-11-615 (2003) (providing that when a landowner institutes a civil action for the wrongful harvesting of timber, his damages for the loss of his timber shall not exceed three times the fair market value of the timber). The trial court denied the motion to limit Wimberly's claim to three times the value of the timber and granted Respondents' motion for directed verdict on the claim of unfair trade practices. Wimberly consented to go forward only on the trespass claim. The jury was charged only on the law of trespass and was instructed to determine whether actual or punitive damages were proper. Neither party requested the timber statute be charged to the jury, and the statute was not charged.

The jury returned a verdict in favor of Wimberly in the amount of $33,300.00 in actual damages and $30,000.00 in punitive damages. Respondents moved for judgment notwithstanding the verdict (JNOV) to reduce the amount of actual damages pursuant to section 16-11-615 to exactly three times the value of the timber cut. Additionally, they moved for JNOV as to both the actual and punitive damages alleging neither had been proven. In the alternative, they moved for a new trial absolute.

The trial court found the timber statute was the exclusive remedy for Wimberly's actual damages and reduced the actual damages award to $12,490.92, which was three times the value of the cut timber testified to by Wimberly's witness at trial. The court denied the remaining motions, thereby letting stand the $30,000.00 in punitive damages.

Wimberly appeals the grant of the JNOV as to the actual damages and Respondents appeal the trial court's failure to grant a JNOV as to punitive damages.

STANDARD OF REVIEW

Although the parties appeal the trial court's decision on a motion for a JNOV, the trial court's decision was based upon the court's interpretation of a statute. The issue of interpretation of a statute is a question of law for the court. Charleston County Parks & Recreation Comm'n v. Somers, 319 S.C. 65, 67, 459 S.E.2d 841, 843 (1995) (holding the determination of legislative intent is a matter of law). Further, whether the timber statute creates an exclusive remedy is a novel question of law. Appellate courts are free to decide novel questions of law with no particular deference to the lower court. I'On, L.L.C. v. Town of Mt. Pleasant, 338 S.C. 406, 411, 526 S.E.2d 716, 718-19 (2000).

LAW/ANALYSIS

Wimberly argues the trial court erred in finding the timber statute is an exclusive remedy. He argues that proceeding under the timber statute is merely one remedy available, and because he proceeded under a trespass cause of action, he could recover all actual and punitive damages. Respondents contend section 16-11-615 is the exclusive remedy by which Wimberly can recover damages caused by the removal of timber from his property. Respondents argue that because the statute is the exclusive remedy, the trial court erred in failing to grant their motion for a JNOV as to punitive damages.⁴

A.

The main issue in this appeal is whether the timber statute sets forth the exclusive remedy for recovering damages associated with the improper removal of timber or whether a landowner is able to bring additional causes of action. We find the statute does not create the exclusive remedy for all damages associated with the removal of timber.

Section 16-11-615 reads:

In all criminal prosecutions for violation of the provisions of §§ 16-11-520, 16-11-580, and 16-11-10, relating to cutting or destroying timber, the defendant may plead the payment of not to exceed exactly three times the fair market value of the timber as determined by a registered forester and upon the plea being legally established and the payment of all costs accrued at the time of the plea he must be discharged from further penalty. If it is necessary to institute civil action to recover the fair market value of the timber, the State, in case of state lands, and the owner, in case of private lands, shall receive damages of not to exceed exactly three times the fair market value of the timber established by a registered forester if judgment is in favor of the State or the owner.

S.C.Code Ann. § 16-11-615 (2003).

The cardinal rule of statutory construction is to ascertain and effectuate the intent of the legislature. Hawkins v. Bruno Yacht Sales, Inc., 353 S.C. 31, 39, 577 S.E.2d 202, 207 (2003). Where the terms of the statute are clear, the court must apply those terms according to their literal meaning. Paschal v. State Election Comm'n, 317 S.C. 434, 436, 454 S.E.2d 890, 892 (1995).

Section 16-11-615 has only been discussed in one prior case. In Stroud v. Elliott, 316 S.C. 242, 449 S.E.2d 261 (Ct.App.1994), this Court determined the actual damages awarded by the jury for the improper removal of timber were not supported by the evidence and were excessive. While the amount was less than three times the fair market value of the timber, this Court refused to affirm on the additional sustaining ground that section 16-11-615 provides for recovery not to exceed three times the fair market value. The case proceeded under causes of action for trespass and to quiet title, not under the timber statute, and this Court noted the statute was never charged to the jury. Stroud, 316 S.C. at 244 n. 1, 449 S.E.2d at 262 n. 1 (Section 16-11-615 provides that where an owner of private land brings an action to recover the fair market value of timber, the owner `shall receive damages of not to exceed exactly three times the fair market value of the timber.' The trial court, however, did not charge this code section to the jury.). The issue of whether the statute provided the exclusive remedy for damages associated with the wrongful harvesting of timber was not addressed in Stroud.

We must look to the language of the statute itself for guidance. The statute is found within a section of the code addressing criminal trespass and the unlawful use of property. It allows a criminal defendant to be discharged from further penalties under a plea if the defendant pays the harmed landowner an amount of damages not to exceed three times the value of the cut timber. The statute also provides that a landowner can institute a civil action to recover up to...