Penix v. Delong
2015 Ky. LEXIS 1948, 2015 WL 6560016, 473 S.W.3d 609 (2015)
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Rule of Law:
A landowner who hires an independent contractor to cut timber remains liable for the contractor's trespass if the landowner retains responsibility for identifying property lines. To be liable for treble damages under KRS 364.130, the landowner must have had the specific intent to convert timber they knew belonged to another; mere negligence or mistake is insufficient.
Facts:
- Larry Penix, an Ohio resident, owned land in Martin County, Kentucky, which adjoined property owned by Barbara Delong.
- Penix hired a company to survey his boundary line, which was then marked with flags and stakes.
- Penix entered into a contract with a logger, Joe Hunt, Jr., to cut timber on his property; the contract specified that Penix was 'responsible for the property line.'
- Penix's cousin, William Penix, acted as Penix's agent and walked the boundary line with Hunt to show him the markings.
- William Penix, who was not skilled in surveying, became confused by the various markings on the land and negligently pointed out an incorrect boundary line to Hunt.
- Relying on the incorrect information from Penix's agent, Hunt proceeded to cut a substantial amount of timber from Delong's property over several months.
Procedural Posture:
- Barbara Delong sued Larry Penix in the Martin Circuit Court (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 but declined to award treble damages.
- Delong appealed to the Kentucky Court of Appeals (intermediate appellate court), arguing she was entitled to treble damages.
- Penix filed a cross-appeal, arguing he should not be liable at all because the logger was an independent contractor.
- The Court of Appeals affirmed the trial court's finding of Penix's liability but vacated the ruling on treble damages and remanded for further proceedings on that issue.
- The Supreme Court of Kentucky granted discretionary review to address the issues of liability and the standard for treble damages.
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Issue:
Does KRS 364.130's 'intent to convert' requirement for treble damages necessitate proof that a person specifically intended to take timber they knew belonged to another, or is a mistaken but intentional cutting sufficient?
Opinions:
Majority - Justice Cunningham
Yes, treble damages under KRS 364.130 require a specific intent to knowingly convert another's timber. The court reasoned that the 1994 statutory amendment adding the phrase 'with intent to convert' was pivotal, elevating the required mental state beyond mere recklessness or mistake, which might have previously sufficed for common law punitive damages. To interpret the statute as imposing strict liability for any intentional cutting would render the 'intent to convert' language meaningless, as it is impossible to unintentionally cut a tree. The court held that the statute requires a specific intent to do wrong—that is, the trespasser must have intended to cut timber which they knew they were unauthorized to cut. While Penix was liable for actual damages due to his agent's negligence and his contractual responsibility for the property line, his actions, such as hiring a surveyor, indicated good faith and a lack of the specific wrongful intent required for penal treble damages.
Dissenting - Chief Justice Minton
No, the 'intent to convert' language simply requires that the person intended to take the trees for their own commercial gain, regardless of whether they mistakenly believed the trees were theirs. The dissent argued that KRS 364.130 is fundamentally a trespass statute, and trespass has historically been a strict-liability tort. The majority over-analyzed the term 'convert' by importing elements of the common law tort of conversion. The ordinary meaning of converting the timber is simply taking it and selling it for profit, which Penix intentionally did. The dissent contended that as long as Penix intended to take the trees for his own gain, it is irrelevant whether he mistakenly believed they were his. Furthermore, Penix's act of obtaining a survey and then disregarding its correct markings should be seen as evidence of recklessness, not good faith.
Analysis:
This decision significantly raises the evidentiary burden for plaintiffs seeking treble damages in timber trespass cases in Kentucky by requiring proof of a defendant's subjective wrongful intent. It solidifies that KRS 364.130 is not a strict liability statute for treble damages, distinguishing between negligence causing trespass (which warrants actual damages) and a specific intent to steal (required for penal damages). The ruling may make it more difficult to hold absentee landowners or those acting through agents liable for treble damages, shifting the legal focus from the act of trespass itself to the trespasser's state of mind. Future litigation will likely center on what evidence is sufficient to prove this heightened standard of 'intent to convert.'
