Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Neidhardt v. Shouse

United States District Court, M.D. Tennessee, Columbia Division

July 11, 2017

FRANCES E. NEIDHARDT, Plaintiff,
v.
BILLY WAYNE SHOUSE, et al., Defendants.

          MEMORANDUM OPINION

          WAVERLY D. CRENSHAW, JR. CHIEF UNITED STATES DISTRICT JUDGE

         This action came before the Court for a bench trial on April 18 and 19, 2017, presenting the issue of the proper measure of damages for the negligent cutting of another's trees and conversion. Based on the entire record, the Court finds by a preponderance of the evidence that Frances E. Neidhardt shall recover from Sharon Kay Thomas a/k/a Sharon Knowles, Jack Knowles, and Billy Wayne Shouse a total award of $3, 015.60.

         In May 2015, the Knowles hired Shouse to cut timber and clear land. (Doc. No. 58 at ¶ 4.) Shouse mistakenly cut and fell thirteen (13) large trees from approximately one (1) acre of land that belonged to Neidhardt. (Id. at ¶ 5.) Neither Shouse nor the Knowles had Neidhardt's permission to enter upon or to cut trees on Neidhardt's property. By doing so, they committed the torts of trespass and conversion. See Burlison v. United States, No. 2:07-cv-02151-JPM-cgc, 2011 WL 1002808, at *8 (W.D. Tenn. Mar. 15, 2011) (quoting Baker v. Moreland, No. 89-62-II, 1989 WL 89758, at *4 (Tenn. Ct. App. Aug. 9, 1989)) (“Under Tennessee law, ‘[e]very unauthorized entry upon another's realty is a trespass, regardless of the degree of force used or the amount of damage.'”); Shipwash v. United Airlines, Inc., 28 F.Supp.3d 740, 753 (E.D. Tenn. 2014) (quoting Ralston v. Hobbs, 306 S.W.3d 213, 221 (Tenn. Ct. App. 2009)) (“Under Tennessee law, ‘[c]onversion is the appropriation of another's property to one's own use and benefit, by the exercise of dominion over the property, in defiance of the owner's right to the property.'”).

         Neidhardt is entitled to damages. She seeks damages for the value of the 13 trees that Shouse cut down, and damages for trespass. Awarding damages for the value of the trees and for trespass is appropriate in Tennessee. Ellis v. Vic Davis Const., Inc., No. 03S01-9201-CV-00011, 1992 WL 183536, at *2 (Tenn. Aug. 3, 1992).

         Tennessee Code Annotated § 43-28-312 governs liability and damages for cutting timber from the property of another and provides:

(a) (1) Civil liability for the negligent cutting of timber from the property of another is in an amount double that of the current market value of the timber.
(2) If the timber is negligently cut from the property of another because the landowner for whom the timber is being cut has marked or designated the boundary of the landowner's property incorrectly, then the landowner is jointly liable for the double damages.
(b) Civil liability for knowingly and intentionally cutting timber from the property of another is in an amount treble that of the current market value of the timber.
(c) Nothing in this section precludes an owner of property on which timber has been cut by another from recovering damages for loss of value other than commercial timber value, if any, of the timber negligently or intentionally cut.
(d) “Current market value, ” as used in this section, applies to the property in question that is standing timber; therefore, the current market value is that of the timber before being cut.

         Here, Neidhardt voluntarily dismissed her claim for intentional cutting of timber. (Doc. No. 57.) The Court finds that Sharon Knowles instructed Shouse to clear Neidhardt's land because she thought the land belonged to her. Thus, the Court concludes that the cutting of Neidhardt's timber was negligent.

         1. Trunk Formula Method

         Neidhardt relies on the trunk formula method to determine the value of the trees. Certified arborist Dr. Douglas Airhart testified that the trunk formula method is used to value trees that are too large to be replaced by equal-sized nursery trees. Dr. Airhart specifically opined that the value of Neidhardt's real estate was not relevant to his valuation of the trees because her property was not for sale. Similarly, Dr. Airhart opined that it would be inappropriate to award damages based on the market value of the trees because Neidhardt did not want the trees to be harvested for any reason.

         Dr. Airhart applied the trunk formula method as set forth in the Guide for Plant Appraisal, 9th Edition from the Council of Tree and Landscape Appraisers (International Society of Arboriculture, 2000) (the “Guide”). He visited Neidhardt's property to verify the location of the cut trees. He relied on a report from a consulting forester that ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.