18-026f.v15.htm

CADDNAR

[CITE: Crowe v. Eiler, Fidelity and Deposit Company of Maryland, & DNR, 15 CADDNAR 54 (2019)]

[VOLUME 15, PAGE 63]

Cause #: 18-026F

Caption: Crowe v. Eiler, Fidelity and Deposit Company of Maryland, & DNR

Administrative Law Judge: Jensen

Attorneys: Brown (Crowe); Thompson (Eiler)

Date: April 5, 2019

[Editor’s Note: Final Order follows Findings of Fact and Conclusions of Law.]

FINDINGS OF FACT AND CONCLUSIONS OF LAW WITH FINAL JUDGMENT

Procedural Background and Jurisdiction

1. On February 26, 2018, the Petitioners, Pervis Crowe and Judith Crowe (Crowe), by Counsel, Daniel L. Brown, filed their “Complaint” against Respondents, Ezekiel Eiler (Eiler), and Fidelity and Deposit Company of Maryland (Fidelity), with the Natural Resources Commission (Commission).

2. Crowe’s Complaint alleges, in part, that Eiler, as a timber agent and timber buyer acting under the authority of licenses FTA002230 and FTB000986, respectively, harvested timber from Crowe’s real property without authorization while harvesting timber from an adjoining property pursuant to a contract or agreement entered into with Phillip Hougland and Ruth Hougland.

3. In their Complaint, Crowe seeks damages from Eiler in the amount of three times the actual stumpage value of the timber as well as compensation for the “expense of a survey, the expense of a forester, the expense of clean-up of Crowe’s property…” as well as for “costs of this action…”

4. Crowe’s Complaint further alleges that Fidelity issued a surety bond, identified as LPM7655272, to Eiler from which Crowe seeks contribution towards the payment of the damages for which they maintain Eiler is responsible.

5. Eiler, by Counsel, Kerry Thompson, filed “Answer of Ezekiel Eiler to Plaintiff’s Complaint” (Answer) on March 13, 2018.

6. Following a continuance sought by Crowe, notice was provided and a Prehearing Conference was conducted on April 11, 2018. Two Status Conferences were subsequently conducted on June 13, 2018 and July 12, 2018.

7. On March 23, 2018, Patricia H. Schroeder (Schroeder), Claims Counsel, for Zurich North American (Zurich) filed correspondence advising that Crowe’s claim against Fidelity was being handled by Zurich. Schroeder provided notice that she had been assigned as the representative of Zurich on behalf of Fidelity. Schroeder also requested authority to participate in the Prehearing Conference by teleconference but was advised by Commission staff that due to the location at which the Prehearing Conference was scheduled the Commission could not accommodate the request. Zurich did not participate in the Prehearing Conference but Schroeder did participate by teleconference on behalf of Zurich in the subsequent Status Conferences.

8. During the Status Conference conducted on July 12, 2018, Schroeder advised that Zurich would not participate in the Administrative Hearing but would comply with a subsequent order issued by the Commission.

9. An Administrative Hearing was conducted on January 16, 2019 with Crowe and Eiler present in person and by Counsel. Zurich, on behalf of Fidelity, as expected, did not participate.

10. It is noted that within Crowe’s Complaint, paragraphs enumerated 7 and 8 were duplicated. For clarity, during the Prehearing Conference, the second occasion in which a paragraph is numbered 7 and 8 were amended by interlineation to identify the paragraphs as 7a and 8a. Report of Prehearing Conference, pg. 3. Because of the paragraph numbering error in Crowe’s Complaint, Eiler’s Answer reflected both that he lacked sufficient information to admit or deny paragraphs 7 and 8, while simultaneously admitting paragraphs 7 and 8. In the “Report of Prehearing Conference” it is reflected that Eiler’s Answer was amended by agreement to reflect insufficient information to answer with respect to paragraphs 7 and 8, and a denial to paragraphs 7a and 8a.

11. Eiler’s Answer also provides as affirmative defenses that Crowe participated in the “marking and flagging” of the property boundary lines between the Crowe and the Hougland properties and, as such, is “at least in part” responsible for Eiler’s unauthorized harvest of Crowe’s timber. Further, Eiler alleges that Crowe has been paid $6,000 by Hougland for the unauthorized harvest of Crowe’s timber.

12. The instant proceeding was initiated under the authority of Indiana Code § 25-36.5-1-3.2, which, in relevant part, states:

Sec. 3.2. (a) This section refers to an adjudicative proceeding against:

(1) a timber buyer; or

(2) a person who cuts timber but is not a timber buyer (referred to as a “timber cutter” in this section).

(b) The department may under IC 4-21.5-3-8 commence a proceeding against a timber buyer or a timber cutter if there is reason to believe that:

(1) the timber buyer or timber cutter has acquired timber from a timber grower under a written contract for the sale of the timber without payment having been made to the timber grower as specified in the contract; or

(2) if:

(A) there is no written contract for the sale of the timber; or

(B) there is a written contract for the sale of the timber but the contract does not set forth the purchase price for the timber;

the timber buyer or timber cutter has cut timber or acquired timber from the timber grower without payment having been made to the timber grower equal to the value of the timber as determined under IC 26-1-2.

(d) The necessary parties to a proceeding initiated under this section are:

(1) the timber grower; and

(2) the timber buyer or timber cutter.

(e) After the commencement of a proceeding under this section through the service of a complaint under IC 4-21.5-3-8, a party to the proceeding may move for the joinder of any of the following persons having a relationship to the site or subject of the complaint:

(1) The surety of the timber buyer.

(2) A timber buyer.

(3) A timber cutter.

(4) A landowner.

(5) An owner of land adjacent to the land from which the timber was cut.

(6) A consultant receiving a fee for services related to the timber.

(7) A professional surveyor performing an American Land Title Association and American Congress on Surveying and Mapping (ALTA/ACSM) land title survey.

(8) The department of natural resources, if the department has a relationship to the site or subject of the complaint as a landowner or owner of adjacent land.

(f) The complaint served under IC 4-21.5-3-8 to commence a proceeding under this section may seek the following:

(1) Damages in compensation for damage actually resulting from the wrongful activities of a timber buyer or timber cutter.

(2) Damages equal to three (3) times the stumpage value of any timber that is wrongfully cut or appropriated without payment.

(g) Notwithstanding subsection (f), the liability on the surety bond of a timber cutter is limited to the value of any timber wrongfully cut or appropriated.

(h) A proceeding under this section is governed by IC 4-21.5. Before a hearing is convened in the proceeding, a prehearing conference shall be conducted to provide the parties with an opportunity for settlement, including an opportunity for mediation.

(i) In determining the site for a hearing in a proceeding under this section, the administrative law judge shall consider the convenience of the parties.

(j) A final agency action in a proceeding under this section must address all issues of damage and responsibility and, after the completion of the opportunity for judicial review, may be enforced in a civil proceeding as a judgment.

13. The Commission is the ultimate authority, as that term is defined at Indiana Code § 4-21.5-1-15, with respect to adjudicatory proceedings initiated under Indiana Code §§ 25-36.5 et. seq and Indiana Code § 4-21.5-3.8. 312 IAC 14-1-2(d).

14. Pursuant to Indiana Code § 25-36.5-1-3.2(c), Crowe, as a timber grower may initiate this proceeding.

15. The Commission possesses jurisdiction over the subject matter and over the persons of the parties.

[VOLUME 15, PAGE 64]

Findings of Fact [1]

16. No evidence was presented regarding Crowe’s expenses associated with obtaining a survey, or the services of a forester. Further, no evidence was presented with respect to the cost of cleaning up the Crowe property or the costs of this action.[2] With respect to any property

damage, Crowe’s witness, Nathan Kachnavage (Kachnavage), testified that damage in the form of ruts left on Crowe’s property by Eiler’s equipment was minimal. These issues presented in Crowe’s Complaint will not receive further consideration.

17. Eiler admitted in his Answer that he is a timber buyer and timber agent holding licenses numbered FTA002230 and FTB000986, respectively.

18. Eiler also admitted in his Answer that he entered into a contract or agreement to harvest timber from the property of Hougland, which property neighbors the property of Crowe.

19. Eiler and Crowe stipulated to the authenticity and accuracy of a survey prepared by Jeffrey D. Souder on August 17, 2017. Stipulated Exhibit I.

20. The Crowe property is located to the north of the Hougland property with the two properties sharing a common boundary approximately 1,380 feet in length. Id.

21. Eiler harvested 6 white oak trees from Crowe’s property without authorization. Crowe Exhibit 1.

22. Kachnavage owns Woodland Works and serves as a Consulting Forester to provide landowners with timber and wildland management services. Kachnavage holds a Bachelor of Arts degree in Forestry from Purdue University. On approximately 10 occasions, Kachnavage has assisted property owners in resolving timber disputes similar to the one presented in this proceeding. He added that this is the first instance in which an Administrative Hearing has been necessary or he has been required to testify.

23. Kachnavage testified that he prepared a stumpage value estimate (Estimate) dated September 13, 2017 for Crowe. Crowe Exhibit 1. The Estimate affixes a value to each of the six trees Eiler harvested from the Crowe property. Kachnavage explained that he is confident in the estimated value of trees identified as #1, #2, #3, and #4. However, he testified that he disclosed to both Crowe and Eiler from the beginning that the estimated length, volume and value of the trees identified as #5 and #6 were over-stated on the Estimate.

24. The value of four of the white oak trees identified #1, #2, #3, and #4 on the Estimate is not in controversy. Id., Testimony of Kachnavage

25. The value of the white oak trees identified as #5 and #6 on the Estimate are in dispute.

26. Kachnavage elaborated with respect to trees #5 and #6 that the tops had been moved making it extremely difficult to accurately identify the length of the logs produced by the trees. Kachnavage testified that he measured the length of trees #5 and #6 as the distance between the locations of the stumps and the locations of the tree’s tops at the time of his field inspection, even though it was clear to him that the tops had been moved away from the stumps. This resulted in an artificially increased length of the logs harvested from trees #5 and #6. Kachnavage testified further that the stumps associated with trees #5 and #6 were overly large and displayed evidence of significant flare. The flaring of the stumps caused concern in Kachnavage’s mind that the estimated diameter at breast height was also artificially increased.

27. Contrary to the value stated on the Estimate, Kachnavage testified to his belief that a more accurate estimation of the volume in board feet associated with tree #5 would be between 600 – 700 board feet. For tree #6, Kachnavage testified that a more accurate estimation of board feet would be between 700 – 800 board feet.

28. Kachnavage testified to his belief that the $6,528 stumpage value stated on the Estimate should be decreased by approximately $3,728 to correlate to the adjusted board feet volume of trees #5 and #6. Kachnavage stated that a more accurate estimation of the stumpage value of the six trees Eiler harvested from the Crowe property would be $2,800.

29. Only the testimony of Kachnavage and the Estimate was admitted as evidence of the stumpage value of the six trees in question.

30. Based upon the available evidence the revised stumpage value estimate of $2,800, must be accepted as accurate.

31. Eiler had not, as of the date of the Administrative Hearing, compensated Crowe for the trees harvested from Crowe’s property.

32. Eiler did not have a contractual relationship with Crowe and had not entered into an agreement with Crowe to harvest timber.

33. On August 30, 2017, Crowe and Hougland executed a “Partial Release” by which Hougland, in relevant part, agreed to compensate Crowe in the amount of $6,000 in return for Crowe’s release and discharge of:

Hougland, his heirs, executor, administrator, and all firms (except Ezekiel Eiler), corporations (except Ezekiel Eiler), and persons on his behalf liable (except Ezekiel Eiler), from all claims, demands, damages, actions or causes of action arising from or growing out of, any and all personal injuries and damages, now apparent as well as those which may hereafter develop as a direct or indirect result of an encroachment and cutting of timber incident on the line between the parties herein (except for claims against Ezekiel Eiler for stumpage value and attorney’s fees, and other timber related damages including but not limited to those set forth in IC 25-36.5 et. seq. and 312 IAC 14-1-1 et. seq.) Stipulated Exhibit 1.

34. A disagreement about the location of the boundary line between the Crowe and the Hougland properties was apparent before Eiler’s harvest of timber under his agreement with Hougland began. Testimony of Hougland, Crowe and Eiler.

35. Hougland testified that in an effort to resolve the boundary line dispute, Crowe accompanied him and Eiler in the woods. According to Hougland and Eiler, Crowe was afforded the opportunity to identify trees that he knew to be on his property. Hougland and Eiler consistently testified that as Crowe identified those trees, Eiler would identify another tree further south, toward the Hougland property, until Crowe was satisfied that the tree identified was not on his property. Eiler stated that he marked those trees Crowe identified as being on the Hougland property with orange flag tape. According to Hougland and Eiler, the three agreed that the trees marked with orange flag tape would represent the shared boundary line between the Hougland and the Crowe properties.

36. Eiler agreed not to harvest any tree to the north of the trees marked with orange flag tape. Testimony of Eiler.

37. Crowe acknowledged accompanying Eiler when trees were marked with orange flag tape but maintained that Hougland was not present on those occasions.

38. Crowe testified that he identified trees for Eiler that he knew were located on his property but stated that he had no intention for trees marked by Eiler to be used to identify a property boundary between the Crowe and the Hougland properties. Crowe insisted during his testimony that he repeatedly told Eiler to get a survey because he did not know exactly where the boundary line was.

39. After marking trees with orange flag tape, the very next day Eiler discovered that the tape had been removed. Only Crowe, Eiler and Hougland were aware that the trees were marked. Each of the three deny removing the tape. Testimony of Crowe, Eiler and Hougland.

40. According to Hougland and Eiler, Crowe assisted a second time marking trees with orange flag tape. The parties disagree as to the intent for marking the trees the second time in the same way they disagree with respect to the purpose of marking the trees on the first occasion.

41. It cannot be determined with certainty how many trees were marked by Eiler with orange flag tape. Testimony of Eiler. Initially, Eiler testified that there were “several” trees marked in this way. In later testimony, Eiler stated both that he marked “two or three” trees and that he marked “at least two” trees along the 1,380 foot shared boundary between the Crowe and the Hougland properties.

42. Eiler testified to his “suspicion” that it was Crowe who removed the orange flag tape and acknowledged the action as indication that Crowe did not agree with the manner in which the ownership of the trees and the identity of the shared boundary between the Crowe and the Hougland properties were being ascertained. Testimony of Eiler.

43. Hougland further testified that Crowe, measuring from what he believed to be his northwest corner using a 100 foot tape measure, identified the west point of the shared boundary between the Crowe and the Hougland properties (The west point would be the point identifying the southwest corner of the Crowe property and the northwest corner of the Hougland property.) Hougland acknowledged that the resulting measurement was approximately “12 to 15 feet off” the location where Crowe had identified the west point on a past occasion unrelated to the events involved in this proceeding.

44. The survey identifies a fence located on the north side of Crowe’s property is 12.3 feet north of the northwest corner of Crowe’s property. Stipulated Exhibit 1. The testimony is not crystal clear but if Crowe used the fence to identify the southwest corner of his property as the point from which to begin measuring, the west point by measurement would have reasonably been 12.3 feet north of the true location, which would be 12.3 feet onto Crowe’s property.

45. According to Hougland, Crowe was satisfied using the west point, as measured, for purposes of identifying the shared boundary between the Crowe and the Hougland properties.

46. Despite Hougland’s assertion that Crowe was satisfied with the identified location of the west point, Crowe and Hougland disagreed about the angle of the shared boundary between the Crowe and the Hougland properties. Testimony of Crowe. According to the survey, the boundary line angles to the south as it extends westward.

47. Again, despite his cooperation with Hougland and Eiler, Crowe testified that he consistently instructed Hougland and Eiler to get the line surveyed before harvesting any timber.

48. The Administrative Law Judge (ALJ) is without any reason, based upon the demeanor of the Crowe, Hougland and Eiler, to believe that any of them were being untruthful. Instead, the ALJ believes that their individual interpretations of the events based upon their individual intentions and purposes were inconsistent.

[VOLUME 15, PAGE 65]

49. The survey identifies a log road existing on the Crowe property 70 feet north of Crowe’s southern boundary line and areas of Crowe’s property disturbed by timber harvest activities 65 feet north of the shared boundary between the Crowe and the Hougland properties. Stipulated Exhibit 1.

50. The survey also identifies the location of the stumps from the six trees that are at issue in this proceeding. Id. While the survey does not provide an exact distance of an individual tree stump from the shared boundary line between the Crowe and the Hougland properties, from a comparison with the depiction of the log road and the disturbed area it can reasonably be concluded that four of the stumps are approximately 50 feet inside Crowe’s property with two of the stumps being significantly closer to the shared boundary line. Id. Only one of the tree stumps appears to be in an area within approximately 12 to 15 feet of the shared boundary line between the Crowe and the Hougland properties.

51. Even assuming that Crowe had intended his assistance in marking trees and measuring property lines to serve as the identification of the shared boundary line between his and the Hougland property, Eiler’s harvest of trees and disturbance of land up to 70 feet north of the shared boundary line is not reasonable in the mind of the ALJ.

52. No evidence was presented during the Administrative Hearing regarding Eiler’s bond allegedly issued by Fidelity.

Conclusions of Law

Liability of Timber Buyer

53. Eiler is a timber buyer. Indiana Code § 25-36.5-1-1

54. Crowe is a timber grower. Id.

55. Eiler did not acquire Crowe’s timber under any type of contract or agreement and Eiler has not compensated Crowe in an amount equal to the value of the timber. Consequently, Crowe is entitled to initiate the instant proceeding. Indiana Code § 25-36.5-1-3.2(b & c).

56. As relevant to this proceeding, the appropriate damages that may be awarded to Crowe upon the presentation of satisfactory evidence includes, “damages in compensation for damage actually resulting from the wrongful activities of a timber buyer or timber cutter”, and “damages equal to three (3) times the stumpage value of any timber that is wrongfully cut or appropriated without payment.” Indiana Code § 25-36.5-1-3.2(f).

57. Crowe presented no evidence that Eiler damaged his property except with respect to the unauthorized harvest of six trees.

58. In their Complaint, Crowe originally sought an award of damages in compensation for attorney fees and other expenses of litigation. Evidence was not offered in support of this claim.

59. In any event, it is noted that “The Indiana General Assembly has not authorized the Commission to award litigation expenses under the Timber Buyer Act. The Commission lacks the legal authority under the Timber Buyer Act to grant attorney fees.” Rosenbaum Farms v. A&S Logging and Capitol Indemnity, 12 CADDNAR 144 (2009), citing Fischer v. Stodghill and Hartford Fire Insurance Company, 10 Caddnar 147, 163 (2005); and Pike Lumber Co., Inc. v. Cruse Timber, et al., 10 Caddnar 28 (2005).

60. The stumpage value of the six trees is concluded to be $2,800.

61. The maximum damage award that may be entered in this proceeding is $8,400.

62. As has been noted by the Commission on numerous occasions, it may exercise discretion in determining to award three times the stumpage value in damages. In McClure v. Perry & Richardson, 13 CADDNAR 96 (2013), the Commission reaffirmed its determination that the “purpose of the treble-damages clause is ‘to insure that timber buyers will exercise care in cutting of timber and to protect landowners from careless felling of their timber.” Citing Wright v. Reuss, 434 N.E.2d 925, 929 (Ind. App. 1982). Also in McClure, the Commission recognized that under amendments made to the Timber Buyers Act in 1993, an award of three times the stumpage value is no longer mandatory, but is now subject to the reasonable discretion of the Commission.” See Gallien v. Sloan Logging, Pendley & Zurich N. Am., 9 Caddnar 40 (2002).

63. However, routinely “the Commission has required less than the full impact of the treble-damages clause only if treble damages would cause an injustice.” (emphasis added), McClure, supra, citing O’Neal v. Bowers and Spurgeon, 13 Caddnar 64 (2012), Hagan, et al. v. Lewis, Cincinnati Insurance Co., Martin and US Fidelity & Guaranty Co., 7 Caddnar 146 (1996); Guy W. Pollock v. Dale Coats, 8 Caddnar 124 (1999); Gallien v. Sloan Logging, Pendley & Zurich N. Am., 9 Caddnar 40 (2002); and Booker, et al v. Mason and Shorter, 10 Caddnar 1 (2005).

64. “Such discretion may most appropriately be applied where the timber buyer or timber cutter acts with all due diligence, but because of misdirection or connivance of another, is caused to err.” Martin, supra at 73, citing Gallien v. Sloan Logging, Pendley & Zurich North American, 9 CADDNAR 40, (2002), Hornaday v. Ammerman, et al., 8 CADDNAR 112, (1999) and Pollock v. Coats, 8 CADDNAR 124, (1999).

65. A timber buyer may not defend his actions claiming a mistake of fact as to the ownership of property from which timber is harvested but must act diligently in identifying the correct property from which to conduct a harvest. See Beeman v. Marling, 646 N.E.2d 382 (Ind. App. 1995) and O’Neal, supra.

66. A Petitioner is also not required to show that “the person who wrongfully cut timber acted with malicious intent.” Beeman, supra.

67. Eiler was aware that neither Hoagland, nor Crowe, could identify with certainty the location of the boundary line between their respective properties.

68. The evidence establishes that an effort was made to identify a satisfactory estimation as to the location of the boundary line between the Crowe and the Hougland properties but the evidence also indicates that a reasonably prudent person would not have relied upon the result of that effort.

69. Crowe’s involvement is not interpreted as connivance or an attempt to mislead Eiler or Hougland.

70. Eiler acknowledged his belief that Crowe was not satisfied with the manner in which the boundary line between the Crowe and the Hougland properties was being identified.

71. It is wholly unreasonable for Eiler to believe that marking two or three trees along a 1,380 foot boundary line was sufficient identification of the property from which he was authorized to harvest timber.

72. The evidence of record in this proceeding supports the conclusion that an award of damages equal to three times the stumpage value of the timber, or $8,400, is warranted.

Setoff

73. Eiler seeks a setoff against any damage award granted to Crowe in this proceeding in an amount of $6,000 paid to Crowe by Hougland according to the terms of the Partial Release in compensation for “…any and all personal injuries and damages, now apparent as well as those which may hereafter develop as a direct or indirect result of an encroachment and cutting of timber incident on the line between the parties herein…” Stipulated Exhibit I.

74. “…Indiana courts have traditionally followed the ‘one satisfaction’ principle, meaning that courts should take account of settlement agreements and credit the funds received by the plaintiff through such agreements, pro tanto, toward the judgment against the co-defendants.” Palmer v. Comprehensive Neurologic Services,, P.C., 864 N.E.2d 1093, 1101 (Ind. App. 2007). In other words, “…a plaintiff is entitled to only one recovery for a wrong.” Minix v. Canarecci, 956 N.E.2d 62 (Ind. App. 2011)

75. Setoff is appropriate when a Petitioner, such as Crowe, asserts claims arising from the same facts, that identifies the same injuries, and seeks the same relief from two jointly liable individuals. Id., and Palmer, supra at 1100.

76. The Commission has determined in past instances of a nature similar to the one at hand that the timber buyer and the timber grower with whom a contract was entered are “jointly and severally liable” to an owner of a neighboring property from which trees were harvested without authorization and to whom compensation was not made by either of the contracting parties. Martin v. Curtis and Teague, 11 CADDNAR 53 (2007)

77. The principle of setoff has been recognized by the Commission on previous occasions. McClure v. Perry & Richardson, 13 CADDNAR 96 (2013).

78. The Partial Release attempts to expressly exempt its application to Eiler; however, an agreement entered into between Crowe and Hougland does not bind the hands of the Commission.

79. In this proceeding the only evidence presented to support a setoff is the Partial Release executed by Crowe and Hougland, which identifies that Hougland paid Crowe $6,000 for damages associated with an “encroachment and cutting of timber incident…”

80. While Crowe did not ultimately present evidence in this proceeding in support of their claims for damages to property resulting from Eiler’s encroachment, the expenses of a forester or a surveyor or the costs of this action, an award in compensation for those damages were sought by Crowe’s Complaint. Each of these identified damages, as well as the damage associated with the unauthorized harvest of timber, would reasonably be associated with Eiler’s “encroachment and cutting of timber incident…”

81. It is concluded, based upon the evidence in the record that the Partial Release entered into by Crowe and Hougland was related to the actions of Eiler and Hougland whose combined actions resulted in injury to Crowe.

82. The Partial Release, which identifies the intent to compensate Crowe for damages associated with Eiler’s encroachment and timber cutting on Crowe’s property was entered into by Hougland and Crowe before a cause of action in trespass was initiated against Hougland by Crowe. Testimony of Crowe and Hougland.

[VOLUME 15, PAGE 66]

83. Through an action in trespass Crowe may have had the ability to recover damages not allowed in this forum. However, Crowe would not have the authority to recover treble damages for the unauthorized harvest of timber as is authorized by Indiana Code § 25-36.5.

84. It is determined that through a trespass action the only portion of the $6,000 settlement that could be attributed to unauthorized harvest of timber would be for the actual stumpage value, previously determined to be $2,800. The remaining $3,200 might reasonably be attributable to Crowe’s other claimed damages that were not pursued through this proceeding.

85. A setoff in the amount of $2,800, or the actual stumpage value of the timber harvested by Eiler without authority, is determined to be appropriate.

Liability of Surety

86. Eiler was a licensed timber buyer at the time of the events at issue in this proceeding and in accordance with Indiana Code § 25-36.5-1-3 was required to maintain such a bond.

87. While it may be surmised that Fidelity issued a bond to Eiler, Crowe presented no evidence at the Administrative Hearing to support a claim against Fidelity.

88. In any event, under Indiana Code § 25-36.5-1-3.2(g), the liability of a surety is limited to the actual value of the timber wrongfully harvested, which amount was paid by Hougland under the Partial Release.

89. In this instance, and for each of the reasons identified in Findings 87 through 90, Crowe’s claim against Fidelity must fail.

Final Judgment

90. Crowe is granted an administrative judgment against Eiler in the amount of $8,400

91. Eiler is granted an offset in the amount of $2,800, which represents a portion of the damages paid to Crowe by Hougland under the terms of the Partial Release.

92. Eiler’s liability for the administrative judgment is reduced to $5,600.

93. The administrative judgment addresses all issues of damage and responsibility among the parties under Ind. Code § 25-36.5. After completing the opportunity for judicial review under Ind. Code § 4-21.5, this judgment may be enforced in a civil proceeding as a judgment.

[1] A Finding of Fact more appropriately construed as a Conclusion of Law or a Conclusion of Law more appropriate considered a Finding of Fact shall so be considered.

[2] During the Administrative Hearing Crowe acknowledged his understanding that these costs are not recoverable. Rosenbaum Farms v. A&S Logging and Capitol Indemnity, 12 CADDNAR 144 (2009)