           IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

                                 NO. 2014-CA-01466-COA

WALTER LEE TAYLOR                                                           APPELLANT

v.

LUCILLE S. GALLOWAY                                                           APPELLEE


DATE OF JUDGMENT:                           06/26/2014
TRIAL JUDGE:                                HON. JOHN HUEY EMFINGER
COURT FROM WHICH APPEALED:                  MADISON COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANT:                    PAUL E. ROGERS
                                            BRIDGETT B. CLAYTON
                                            MARY CATHERINE WILLIAMS
ATTORNEY FOR APPELLEE:                      JAMES L. MARTIN
NATURE OF THE CASE:                         CIVIL - PROPERTY DAMAGE
TRIAL COURT DISPOSITION:                    AWARDED STATUTORY DAMAGES AND
                                            ATTORNEY’S FEES
DISPOSITION:                                AFFIRMED: 05/03/2016
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

       BEFORE GRIFFIS, P.J., ISHEE AND FAIR, JJ.

       FAIR, J., FOR THE COURT:

¶1.    This is the second appeal in a tree-cutting case. In May 2008, Walter Taylor, who

claimed to own the land at issue through adverse possession, contracted with a logger and

harvested timber on the Galloways’1 four acres, without their permission and in violation of

Mississippi Code Annotated section 95-5-10 (Rev. 2004). In the first trial, the jury found

Taylor liable for approximately $17,500 in compensatory damages under section 95-5-10(1).



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           The other original party to this case, Willie M. Galloway, died in August 2012.
This was uncontested on appeal, but we reversed and remanded on the questions of

additional statutory penalties and other fees and costs allowed by subsections (2) and (3) of

the statute. Taylor v. Galloway, 105 So. 3d 1160 (Miss. Ct. App. 2012).

¶2.    After the second trial on remand (the first ended in a mistrial), the jury awarded

Galloway $43,560 in statutory penalties under section 95-5-10(2). The trial court then

awarded an additional $42,767.64 for attorney and witness fees and court costs under section

95-5-10(3). Taylor contests both of these awards on appeal, but we find no merit to his

contentions and affirm.

                                         DISCUSSION

       1. Burden of Proof

¶3.    Taylor’s first contention is that the trial court erred in instructing the jury that it could

award statutory penalties based on a preponderance of the evidence. We review the trial

court’s decisions regarding whether to give or refuse a jury instruction for an abuse of

discretion. Bailey v. State, 78 So. 3d 308, 315 (¶20) (Miss. 2012).

¶4.    Section 95-5-10(2) reads:

       If the cutting down, deadening, destruction or taking away of a tree without
       the consent of the owner of such tree be done willfully, or in reckless
       disregard for the rights of the owner of such tree, then in addition to the
       damages provided for in subsection (1) of this section, the person cutting
       down, deadening, destroying or taking away such tree shall pay to the owner
       as a penalty Fifty-five Dollars ($55.00) for every tree so cut down, deadened,
       destroyed or taken away if such tree is seven (7) inches or more in diameter
       at a height of eighteen (18) inches above ground level, or Ten Dollars
       ($10.00) for every such tree so cut down, deadened, destroyed or taken away
       if such tree is less than seven (7) inches in diameter at a height of eighteen

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       (18) inches above ground level, as established by a preponderance of the
       evidence. To establish the right of the owner prima facie, to recover under the
       provisions of this subsection, it shall be required of the owner to show that the
       defendant or his agents or employees, acting under the command or consent
       of their principal, willfully and knowingly, in conscious disregard for the
       rights of the owner, cut down, deadened, destroyed or took away such trees.

¶5.    In his brief on appeal, Taylor summarily and without argument characterizes the

penalties that were awarded as punitive damages. Therefore, he contends, the penalties could

be awarded only after a finding of clear and convincing evidence of “actual malice, gross

negligence which evidences a willful, wanton or reckless disregard for the safety of others,

or . . . actual fraud.” See Miss. Code Ann. § 11-1-65 (Rev. 2014).

¶6.    But the Mississippi Supreme Court has held that “[t]he statutory penalty for cutting

trees and punitive damages for trespass upon the property bear a different relation and a

different burden of proof.” Seismic Petroleum Servs. Inc. v. Ryan, 450 So. 2d 437, 440

(Miss. 1984) (discussing the statute in effect at the time). In fact, the tree-cutting statute

provides that punitive damages cannot be awarded for the cutting of trees. It states (in

relevant part):

       The remedy provided for in this section shall be the exclusive remedy for the
       cutting down, deadening, destroying or taking away of trees and shall be in
       lieu of any other compensatory, punitive or exemplary damages for the cutting
       down, deadening, destroying or taking away of trees but shall not limit actions
       or awards for other damages caused by a person.

Miss. Code Ann. § 95-5-10(1).

¶7.    Although the question is not squarely before us because Taylor has not argued it, our

supreme court has held that under a prior iteration of the tree-cutting statute, statutory

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penalties need only be proven by a preponderance of the evidence. See Rector v. Shippey,

Outzen & Co., 93 Miss. 254, 256, 46 So. 408, 408 (1908).

¶8.    It is clear in this case that Galloway sought and received damages under the tree-

cutting statute, section 95-5-10(2), and not punitive damages for trespass as Taylor contends.

Taylor offers nothing but bare assertions to the contrary. The trial court’s judgment is always

presumed to be correct, and the burden falls upon the appellant to show reversible error.

Jordan v. State, 995 So. 2d 94, 103 (¶14) (Miss. 2008). Taylor has failed to do so.

¶9.    We affirm the refusal of Taylor’s proposed jury instruction.

       2. Fees and Costs

¶10.   Taylor’s final issue is whether the trial court erred in awarding fees and costs to

Galloway under section 95-5-10(3), which provides that “[a]ll reasonable expert witness fees

and attorney’s fees shall be assessed as court costs in the discretion of the court.”

¶11.   We will reverse the trial court’s award only when that discretion was abused.

Stockstill v. Gammill, 943 So. 2d 35, 49 (¶29) (Miss. 2006) (citation omitted); Taylor, 105

So. 3d at 1168 (¶33).

¶12.   Taylor’s argument here depends entirely on his prevailing under the prior issue. As

he did not, these arguments are moot and this issue is without merit.

¶13. THE JUDGMENT OF THE CIRCUIT COURT OF MADISON COUNTY IS
AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE
APPELLANT.

    LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, ISHEE, CARLTON,
WILSON AND GREENLEE, JJ., CONCUR. JAMES, J., CONCURS IN PART AND

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DISSENTS IN PART WITHOUT SEPARATE WRITTEN OPINION.




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