Penix v. Delong
473 S.W.3d 609, 2015 WL 6560016, 2015 Ky. LEXIS 1948 (2015)
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Rule of Law:
To be liable for treble damages under Kentucky's timber trespass statute, KRS 364.130, a landowner must possess the specific intent to convert timber they know belongs to another. A landowner's negligence in identifying a property boundary, which results in an independent contractor's trespass and cutting of timber, is insufficient to meet the statute's "intent to convert" requirement.
Facts:
- Larry Penix, an Ohio resident, owned timber land in Martin County, Kentucky, adjacent to property owned by Barbara Delong.
- Penix hired a company to survey his boundary line, which was then marked with flags and stakes.
- Penix contracted with a logger, Joe Hunt, Jr., to cut timber, with the contract stipulating that Penix was 'responsible for the property line.'
- Penix's cousin, William Penix, acting as Penix's agent, walked the property with Hunt to show him the boundary line.
- William Penix became confused by various markings on the property (ribbons for 'working stations', ribbons for 'boundary trees', and actual boundary stakes) and negligently pointed out the incorrect boundary line to Hunt.
- Relying on the incorrect boundary identification, Hunt trespassed onto Delong’s property over several months and cut down a substantial amount of her timber.
- Hunt then sold the timber cut from Delong's property, with Penix receiving a royalty from the sale.
Procedural Posture:
- Barbara Delong sued Larry Penix in the Martin County Circuit Court (the trial court) for trespass, seeking actual and treble damages.
- Following a bench trial, the trial court found Penix liable for the trespass and awarded Delong $48,709 in actual damages.
- The trial court denied Delong's request for treble damages, ruling that Penix did not have the requisite 'intent to convert' the timber.
- Delong appealed the denial of treble damages to the Kentucky Court of Appeals.
- Penix cross-appealed, arguing he had no liability because the logger was an independent contractor.
- The Court of Appeals affirmed the finding of liability against Penix but vacated the trial court's ruling on treble damages and remanded for further proceedings.
- The Supreme Court of Kentucky granted discretionary review to resolve the issues.
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Issue:
Does a landowner's negligent failure to correctly identify a property boundary for an independent contractor, resulting in the cutting of timber on an adjoining landowner's property, satisfy the 'intent to convert' requirement for imposing treble damages under KRS 364.130?
Opinions:
Majority - Justice Cunningham
No. A landowner's negligent failure to correctly identify a property boundary does not satisfy the statutory requirement of 'intent to convert' for the imposition of treble damages. The statute requires proof of a specific intent to wrongfully appropriate timber known to belong to another, a higher standard than mere negligence or recklessness. The court affirmed Penix's liability for actual damages, reasoning that the independent contractor rule does not absolve a landowner who contractually assumes responsibility for the property line and whose agent negligently identifies that line. However, for treble damages, the court analyzed the 1994 amendment to KRS 364.130, which added the 'intent to convert' language. The court interpreted this to require a specific state of mind—the intent to cut timber that one knows they are unauthorized to cut. To hold otherwise would render the 'intent' language superfluous and turn it into a strict liability statute. The trial court's finding that Penix lacked this specific wrongful intent was not clearly erroneous, as evidenced by his good faith act of hiring a surveyor, his status as an absentee owner unfamiliar with the land, and the genuine confusion over survey markings.
Dissenting - Chief Justice Minton
Yes. The 'intent to convert' requirement is satisfied when a person intentionally causes trees to be cut and sold for their own commercial gain, regardless of a mistaken belief of ownership. The majority improperly imports the complex elements of the common law tort of conversion into what has historically been a trespass statute rooted in strict liability. The plain meaning of 'convert' is to appropriate for one's own use. Penix intentionally contracted to have trees cut and sold for his profit; therefore, he intended to convert them. The statute's focus is on the intentional taking for personal gain, not on the trespasser's subjective belief about ownership. The majority's holding creates a dangerous safe harbor for timber pirates, who can now obtain a survey, disregard it, and then claim mistake to avoid the statute's punitive remedy. Penix's disregard for the survey he commissioned should be seen as evidence of his intent to take timber, not as a sign of good faith.
Analysis:
This decision significantly raises the standard of proof for plaintiffs seeking treble damages in Kentucky timber trespass cases under KRS 364.130. By requiring specific intent to wrongfully take another's property, the court moves the analysis away from a strict liability trespass framework and towards a quasi-criminal standard of mens rea. This makes it substantially more difficult for landowners to recover enhanced damages for trespasses resulting from negligence, recklessness, or good-faith mistakes about property boundaries. The ruling protects landowners who make efforts to respect boundaries (like hiring a surveyor) from punitive measures, even if their subsequent actions are negligent, but it also potentially shields careless or reckless actors from the statute's full force.
