Date: 06-30-2015

Case Style: Greg Stocker and Rebecca Stocker v. Richard Johnson

Case Number: CJ-2014-1907

Judge: Mary Fitzgerald

Court: District Court, Tulsa County, Oklahoma

Plaintiff's Attorney: Mark Reents

Defendant's Attorney: Curtis Long

Description: Tulsa, OK - Greg Stocker and Rebecca Stocker sued Richard Johnson claiming:

1. Plaintiffs are individuals whØ are husband and wife, and who have their principal place of residence in Sand Springs, Tulsa County, Oklahoma.
2. Defendant is an individual ho has his principal place of residence in Sand Springs, Tulsa County, Oklahoma.
3. The activities of Defendant complained of herein concern damage to real property and the trees located thereon, which real property is located in Tulsa County, Oklahoma
4. All activities concerning this, matter took place in Tulsa County, Oklahoma.
5 This Court has both personal and subject matter junsdiction over persons and this matter.
6. The venue of this action is proper in Tulsa County, Oklahoma.
FACTS
7. Plaintiffs are the owners of certain real property located in Sand Springs, Oklahoma, more particularly described as follows:
Lot Two (2), Block Two (2) CAMBRIDGE PARK, Tulsa County,
Oklahoma according to Plat No. 4908
(hereinafter “Plaintiffs’ Property”).
8. Plaintiffs’ Property is covered by trees of various sizes and types, three types of which are post oak, hickory and black cherry.
9. Defendant is the owner of certain real property which adjoins Plaintiffs’ Property.
10. On or about November 9, 2013, Mrs. Stocker, while at home, heard a noise and went to see what it was.
11. Upon investigation, she encountered 2 men, one being the Defendant, and the other operating a bulldozer.
12. Upon inquiry by Mrs. Stocker of what was going on, the bulldozer operator advised Mrs. Stocker that he was going to clear a path so that Defendant could get to his shed.
13. Mrs. Stocker advised the bulldozer driver and Defendant not to go on Plaintiffs’ Property.
14. The Defendant assured Mrs. Stocker that he had determined the boundary line between the Plaintiffs’ Property and the Defendant’s Property and not to worry.
15. On November 10, 2013, being the day after Mrs. Stocker encountered Defendant and the bulldozer operator, Mr. Stocker investigated the work done by the 2 men with the bulldozer and noticed that a stand of trees on a portion of Plaintiffs’ Property, consisting of a stretch of trees spanning a distance of approximately 7.25 feet in width by 125 feet in length (the “Damaged Path”), had been cleared by a bulldozer.
16. Based upon the location of the Damaged Path, it appears to Plaintiffs that the decision was made by Defendant to cut the Damaged Path through Plaintiffs’ Property rather than cutting the path through Defendant’s Property due to a rock formation on Defendant’s property, which would have made such road construction more difficult and more costly for Defendant.
17. Later that day, Mr. Stocker went to Defendant’s house to advise Defendant that Defendant and/or his agents, employees or servants, had wrongfully entered upon Plaintiffs’ Property and cut down the trees on the “Damaged Path” damaging Plaintiffs and their property and timber.
18. Defendant was not at home, so Mr. Stocker left a written note advising Defendant as
follows:
“The path you made yesterday is on OUR property. See the red t posts?? No further actions are to be taken. The trees you destroyed need to be cleaned up immediately”
The written note was dated and had the name of Greg & Becky Stocker thereon, along with their phone number.
19. Later, on the night of November 10, 2013, Defendant called Mrs. Stocker and did not dispute the fact that Defendant and his employee were on Plaintiffs’ Property. Mrs. Stocker advised Defendant that there was a red stake on Plaintiffs’ Property, near the Damaged Path, which identified a boundary line between Plaintiffs’ Property and Defendant’s property. In fact, there were two (2) red stakes, which indicated the property line between Plaintiffs’ Property and Defendant’s property.
20. When Defendant was advised that the red stake indicated a boundary line between Plaintiffs’ Property and Defendant’s property, Defendant stated to Mrs. Stocker words to the effect of ‘...FIow was I suppose to know what that red stake was for...?’.
21. On November 12,2013, Mr. Stocker advised Defendant that he would obtain an estimate to determine what it would cost to prevent the Damaged Path from further eroding in an attempt to preserve the Damaged Path from further damage, which damage was caused and done by Defendant.
22. On November 18, 2013, Mr. Stocker again contacted Defendant and advised him that the cost for preventing further destruction and erosion to the Damaged Path would cost Mr. Stocker $3,600.00, based upon an estimate, which Mr. Stocker received from D&L Landscape (the “Estimate”). In the same phone call, Mr. Stocker again requested Defendant to stop cutting down trees until a current survey was done in order to confirm the property line between Plaintiffs’ Property and Defendant’s property. Mr. Stocker requested that Defendant pay the $3,600.00 shown on the Estimate and that the parties split the cost of a survey.
23. On November 21, 2013, Mr. Stocker again called Defendant and advised him that subsequent to their previous phone call, that Plaintiffs had had the property line surveyed, and such survey confirmed the boundary line between Plaintiffs’ Property and Defendant’s property was indicated by the red stakes, just as such red stakes existed on November 9, 2013.
24. On November 26, 2013, Mr. Stocker again called Defendant and asked him about the status of review of the Estimate sent to Defendant, and advised that if Defendant chose not to respond Plaintiffs would proceed with legal action.
25. On November 27, 2013, Defendant called Mr. Stocker and advised him that he would pay the Plaintiffs nothing.
26. Mr. Stocker then sought the advice of a Forestry Consultant to more precisely determine the value of the trees Defendant damaged, destroyed and/or removed from Plaintiffs’ Property.
27. The Forestry Consultant estimated there to be 35 trees, which had been removed from the Damaged Path, ranging in size from 1” to 13”, consisting of2l post oak, 13 hickory and 1 black cherry. The Forestry Consultant estimated the value of these 35 trees to be $10,840.00. This amount does not include the cost to plant and maintain new trees or the cost to stabilize the exposed soil from erosion.
28. As a consequence of these wrongful actions taken by Defendant, Plaintiffs have been injured by Defendant and/or his agents, employees, servants and/or anyone hired, employed or under the direction, management and/or control of Defendant and Plaintiffs seeks relief from Defendant to the extent set forth herein below.
FIRST CAUSE OF ACTION
(Damage to Timber under Title 23 O.S.A. § 72)
29. Plaintiffs adopt and incorporate by reference herein all Plaintiffs’ allegations made and contained in paragraphs 1 through 28 above as though they were fully set forth herein.
30. Defendant wrongfully entered upon Plaintiffs’ Property without the consent and/or approval of Plaintiffs.
31. Defendant’s wrongful entry upon Plaintiffs’ Property without Plaintiffs’ consent and/or approval, constituted a trespass by Defendant upon Plaintiffs’ Property.
32. While trespassing upon Plaintiffs’ Property, Defendant cut, bulldozed down, damaged and destroyed some of Plaintiffs’ timber (being the tress previously located on the Damaged Path), which timber consisted of post oak, hickory and black cherry trees.
33. Defendant knew, or should have known, that Defendant was trespassing on Plaintiffs’ Property when Defendant cut, bulldozed down, damaged and destroyed timber on the Damaged Path, which timber within the Damaged Path didn’t belong to Defendant.
34. Plaintiffs’ timber, which was cut/bulldozed down and destroyed by Defendant within the Damaged Path, had an estimated value of $10,840.00.
35. Title 23 O.S.A. § 72 provides in pertinent part as follows:
“A. For wrongful injuries to timber upon the land of another, or removal thereof, the
measure of damages is not less than three (3) times nor more than ten (10) times such a sum as would compensate for the actual detriment, unless:
1. The trespass was casual and involuntary;
2. Committed under the belief that the timber or land belonged to the trespasser; or
3. The timber was taken by the authority of highway officers for the purposes of a highway, in which case the damages are a sum equal to the actual detriment.”
36. Defendant’s trespass upon Plaintiffs’ Property was not casual.
37. Defendant’s trespass upon Plaintiffs’ Property was not involuntary.
38. Defendant’s trespass was not committed under the belief that the timber belonged to the Defendant.
39. Defendant’s trespass was not committed under the belief that the land belonged to the Defendant.
40. The timber was not taken by the authority of highway officers for the purposes of a highway,
41. As a result of Defendant’s actions, Plaintiffs are entitled to an award of damages against Defendant in an amount no less than $ 32,520.00, and in an amount of no more than $108,400.00, together with Plaintiffs’ costs and attorney’s fees.
WHEREFORE, Plaintiffs prays that this Court determine that the Defendant (i) trespassed upon Plaintiffs’ Property (ii) that while a trespasser Defendant cut, bulldozed down, damaged and destroyed some of Plaintiffs’ timber causing damage to Plaintiffs (iii) that Defendant’s trespass was not casual (iv) that such trespass was not involuntary (v) Defendant’s trespass was not committed under the belief by Defendant that the timber belonged to the Defendant, (vi) Defendant’s trespass was not committed under the belief that the Plaintiffs’ Property belonged to the Defendant, (vii) that
the actual damages suffered by Plaintiffs were in the amount of $10,840.00 and (viii) because of
Defendant’s actions and pursuant to Oklahoma law, Plaintiffs should be awarded damages in an amount no less than $32,520.00 [being 3 times the amount of Plaintiffs’ actual damages] and no more than $108,400.00 [being 10 times the amount of Plaintiffs’ actual damages] as a consequence Defendant’s actions; and that in addition, Plaintiffs should be awarded all Plaintiffs’ costs, expenses and attorneys fees.
SECOND CAUSE OF ACTION
(Trespass)
42. Plaintiffs adopt and incorporate by reference herein all of Plaintiffs’ allegations made and contained in paragraphs 1 through 41 above as though they were fully set forth herein.
43. Defendant wrongfully entered upon Plaintiffs’ Property without the consent and/or approval of Plaintiffs.
44. While Defendant was upon Plaintiffs’ Property, Defendant damaged Plaintiffs’ Property by cutting a road through Plaintiffs’ Property (the “Damaged Path”) which entailed the cutting and removal of timber upon Plaintiffs’ Property.
45. Defendant’s wrongful entry upon Plaintiffs’ Property without Plaintiffs’ consent and approval, along with Defendant’s destruction of the timber on Plaintiffs’ Property constitutes a trespass upon Plaintiffs’ Property.
46. Plaintiffs have been damaged by Defendant’s trespass in an amount in excess of
$10,000.00.
WHEREFORE, Plaintiffs pray that this Court determine that the Defendant trespassed upon Plaintiffs’ Property, and as a consequence of such trespass damaged Plaintiffs’ Property, and that Plaintiffs have incurred actual damages in an amount in excess of $10,000.00, and that Plaintiffs should be awarded all Plaintiffs’ actual damages, costs, expenses and attorneys fees, incurred by Plaintiffs in pursuing this remedy against Defendant.
THIRD CAUSE OF ACTION
(Punitive Damages-For Trespass)
47. Plaintiffs adopt and incorporate by reference herein all Plaintiffs’ allegations made and contained in paragraphs 1 through 46 above as though same were fully set forth herein.
48. The Defendant knew (or should have known) the location of the boundary line between Plaintiffs’ Property and Defendant’s property.
49. The Defendant, knowing the location of the boundary line between Plaintiffs’ Property and Defendant’s property, intentionally entered upon, damaged and destroyed a portion of Plaintiffs’ Property, being the Damaged Path, all for Defendant’s own benefit.
50. Defendant told Plaintiffs that he would pay Plaintiffs nothing for the damage he had done to Plaintiffs’ Property.
51. Defendant’s trespass upon Plaintiffs’ Property, damaging and destroying a portion of Plaintiffs’ Property, being the Damaged Path, was done by Defendant intentionally and with malice toward Plaintiffs.
52. Defendant’s trespass upon Plaintiffs’ Property, damaging and destroying a portion of Plaintiffs’ Property, being the Damaged Path, was done by Defendant with reckless disregard for the rights of Plaintiffs.
53. As a consequence of Defendant’s intentional and malicious trespass, damage and destruction to Plaintiffs’ Property, being the Damaged Path, Plaintiffs are entitled to receive an award of punitive damages from and against Defendant in an amount in excess of $10,000.00.
54. As a consequence of Defendant’s trespass upon Plaintiffs’ Property, with such reckless disregard for the rights of Plaintiffs and Plaintiffs’ Property, resulting in damage and destruction to Plaintiffs’ Property (being the Damaged Path) Plaintiffs are entitled to receive an award of punitive damages from and against Defendant in an amount in excess of $10,000.00.
WHEREFORE, Plaintiffs pray that this Court determine that the Defendant trespassed upon Plaintiffs’ Property, which was either (a) an intentional and malicious trespass, or (b) a reckless disregard for the rights of Plaintiffs and Plaintiffs’ Property; and as a consequence of such trespass, which damaged Plaintiffs’ Property, Plaintiffs seek an award from and against Defendant and in favor of Plaintiffs for punitive damages in an amount in excess of $10,000.00, and that
Plaintiffs should be awarded all Plaintiffs’ costs, expenses and attorney’s fees, incurred by Plaintiffs in pursuing this remedy against Defendant.
FOURTH CAUSE OF ACTION
(Agency/Employer-Employee/Master-Servant/Respondent Superior)
55. Plaintiffs adopt and incorporate by reference herein all Plaintiffs’ allegations made and contained in paragraphs 1 through 54 above as though they were fully set forth herein.
55. Under Oklahoma law, an employer is liable for the actions of his employee.
56. Under Oklahoma law, a principal is liable for the actions of his agent.
57. Under Oklahoma law, a master is liable for the actions of his servants or for the actions of anyone hired, employed or under his direction, management and/or control.
58. Under the facts in this case, Defendant is liable for the actions of his servants, employees, agents, and/or anyone hired, employed or under the direction, management and/or control of Defendant, including but not limited to those asserted by Plaintiffs in Plaintiffs’ First, Second and Third Causes of Action above, or otherwise.
59. In the event any of the foregoing facts and/or actions alleged in this Petition by Plaintiffs are attributed by Defendant, or otherwise, to be the actions of Defendant’s servants, employees, agents, and/or anyone hired, employed or under the direction, management and/or control of Defendant, then Defendant is liable to Plaintiffs for the actions of such third persons just as though such actions were performed by Defendant himself.
WhEREFORE, Plaintiffs pray that this Court determine that even if the actions alleged by Plaintiffs to have been done by Defendant were, in fact, done or carried out by the servants, employees, agents, and/or anyone hired, employed or under the direction, management and/or control of Defendant, then
Lii AS TO PLAINTIFFS’ FIRST CAUSE OF ACTION, then this Court should determine that Defendant is liable to Plaintiffs, and that Plaintiffs should be awarded damages against Defendant in an amount no less than $32,520.00 [being 3 times the amount of Plaintiffs’ actual damages] and no more than $108,400.00 [being 10 times the amount of Plaintiffs’ actual damages] as a consequence of the actions of Defendant’s servants, employees, agents, and/or anyone hired, employed or under the direction, management and/or control of Defendant; and that in addition, Plaintiffs should be awarded all Plaintiffs’ costs, expenses and attorneys fees, incurred by Plaintiffs in pursuing this remedy against Defendant.
121 AS TO PLAINTIFFS’ SECOND CAUSE OF ACTION, then this court should determine that Defendant is liable to Plaintiffs, and that Plaintiffs should be awarded damages against the Defendant in an amount in excess of $10,000.00, as a consequence of the actions of Defendant’s servants, employees, agents, and/or anyone hired, employed or under the direction, management and/or control of Defendant; and that in addition, Plaintiffs should be awarded all Plaintiffs’ costs, expenses and attorney’s fees, incurred by Plaintiffs in pursuing this remedy against Defendant.
[3] AS TO PLAINTIFFS’ THIRD CAUSE OF ACTION, then the trespass upon Plaintiffs’ Property, was either (a) an intentional and malicious trespass, or (b) a reckless disregard for the rights of Plaintiffs and Plaintiffs’ Property; and as a consequence of either trespass, which damaged Plaintiffs’ Property, Plaintiffs seek an award from and against Defendant and in favor of Plaintiffs for punitive damages in an amount in excess of $10,000.00, as a consequence of the actions of Defendant’s servants, employees, agents, andlor anyone hired, employed or under the direction, management andJor control of Defendant; and that in addition, Plaintiffs should be awarded all Plaintiffs’ costs, expenses and attorney’s fees, incurred by Plaintiffs in pursuing this remedy against Defendant.

Outcome: Settled and dismissed with prejudice.

Plaintiff's Experts:

Defendant's Experts:

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