Facts
- Tisia Baker Lovelady hired Glenn Creel, individually and doing business as Creel Tree Service, to harvest timber on what she said was her property.
- Forest R. Crim claimed that, in August 1997, Creel entered Crim’s land and cut and removed trees without permission.
- Crim sued both Creel and Lovelady for trespass and timber cutting.
- Creel filed a cross-claim against Lovelady seeking indemnification for any amount he might have to pay Crim, asserting that Lovelady pointed out or represented the cutting area as her own.
- At the bench trial, Crim presented evidence that the cut area was on Crim’s side of a visible fence line separating the properties.
- Evidence also included a written note from Creel to Crim apologizing for “overcutting,” which the trial court could treat as consistent with Crim’s claim that Creel crossed onto Crim’s land.
- The trial court heard ore tenus testimony and viewed the property where the cutting occurred.
- The trial court found that Creel had cut timber from a portion of Crim’s land and had damaged Crim’s property, but that Creel had acted based on Lovelady’s mistaken representation that she owned that portion.
- The trial court entered judgment for Crim against Creel for $5,400 in compensatory damages, entered judgment for Lovelady on Crim’s claim, and awarded Creel $2,700 from Lovelady on the cross-claim (partial indemnity).
- The trial court declined to award statutory tree-cutting damages under Ala. Code § 35-14-1 because it found Creel and Lovelady did not intend to cut Crim’s trees.
- Creel appealed, challenging (1) the finding of trespass liability and (2) the award of only partial indemnification from Lovelady.
Issues
- Whether the trial court’s finding (after ore tenus testimony and a view of the land) that Creel trespassed on Crim’s property and caused compensable damage was plainly and palpably wrong.
- Whether the trial court erred by awarding Creel only $2,700 in indemnification from Lovelady rather than requiring Lovelady to reimburse the full $5,400 judgment owed to Crim.
Decision
- The Alabama Court of Civil Appeals affirmed.
- The court held that the trespass finding and the $5,400 award against Creel were supported by evidence and reasonable inferences, and therefore were not plainly and palpably wrong under ore tenus review.
- The court also affirmed the $2,700 partial indemnity award, concluding the trial court’s allocation of responsibility between Creel and Lovelady was a fact-based determination entitled to deference and not plainly and palpably wrong.
- The judgment remained intact: Creel owed Crim $5,400; Lovelady owed Creel $2,700; and no statutory damages under § 35-14-1 were awarded based on the trial court’s finding of no intent.
Legal Principles
- Under the ore tenus rule, a trial court’s factual findings based on live testimony are presumed correct and will be reversed only if plainly and palpably wrong.
- When the trial court views the premises involved in the dispute, that observation strengthens the deference given to its fact findings on appeal.
- An appellate court does not reweigh conflicting evidence and will not substitute its judgment for the trial court’s where the findings are supported by reasonable inferences from the record.
- Statutory damages for wrongful cutting of trees under Ala. Code § 35-14-1 are not awarded where the factfinder determines the defendants did not intend to cut the plaintiff’s trees.
- Indemnification between a timber cutter and the person who directed the cutting may be awarded in less than the full amount of the cutter’s liability where the trial court, based on the evidence, assigns part of the responsibility to the cutter.
Conclusion
In Creel v. Crim, the court affirmed a bench-trial judgment that held a timber cutter liable for trespass damages after he crossed onto a neighbor’s land and cut trees, even though he acted based on the hiring landowner’s mistaken boundary representation; the court also affirmed the trial court’s decision to grant the cutter only partial indemnification from the landowner and to deny statutory tree-cutting damages because the cutting was not found to be intentional.