* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### SEP 18 1997 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT

JAMES C. HUMPHREYS; JILL M. HUMPHREYS,

Plaintiffs-Appellants,

v. JOHNYNE FUSELIER; JAMES SPARGUR, individually and dba, Specialty Builders; BRET BARNHART, individually and dba, Bret D. Barnhart Construction Company, an Oklahoma Corporation,

Defendants-Appellees. No. 97-5019 (D.C. No. 96-CV-942-H) (N.D. Okla.)

ORDER AND JUDGMENT *

Before ANDERSON, BARRETT, and MURPHY, Circuit Judge s.

After examining the briefs and appellate record, th is panel has determined unanimously to grant the parties’ request for a dec ision on the briefs without oral-2-

argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1.9. The c ase is therefore ordered submitted without oral argument. Plaintiffs James and Jill Humphreys brought this di versity action asserting several claims for damages and seeking an injunctio n relating to defendants’ alleged trespass on plaintiffs’ residential lot in Tulsa County, Oklahoma, and resulting destruction of timber. The district court dismissed the case for failure of the amount in controversy to exceed the amount requ ired by 28 U.S.C. § 1332(a), which at the time the plaintiffs filed their compla int was $50,000. Plaintiffs appeal. According to plaintiffs, defendant Johnyne Fuselierowned property abutting plaintiffs’ lot, and defendant James Sparg ur was constructing a house for her on her property. Under Spargur’s direction, de fendant Bret Barnhart was clearing trees with a bulldozer on Fuselier’s prope rty along the common property line. Near the back of the two lots, he turned the bulldozer on to plaintiffs’ property and pushed the trees uprooted from Fuselie r’s property onto plaintiffs’ property, in the process bulldozing 5,320 square fe et of and allegedly destroying hundreds of trees on plaintiffs’ property. Plaintiffs, who reside in Oregon, brought this acti on for trespass, conversion, and, most importantly for present purpo ses, wrongful damage to timber under Okla. Stat. tit. 23, § 72. This statu te provides as follows:-3- A. For wrongful injuries to timber upon the land of another, or removal thereof, the measure of damages is not l ess than three (3) times nor more than ten (10) times such a sum as wo uld compensate for the actual detriment, unless: 1. The trespass was casual and involuntary; 2. Committed under the belief that the timber or lan d 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 ac tual detriment. B. The prevailing party shall be entitled to costs a nd attorneys fees. Plaintiffs alleged generally that the amount in con troversy exceeded $50,000 and that the damage to timber was wilful and wrongful. On January 8, 1997, the district court held a case management and status conference. At this time, only Barnhart had formal ly answered, and apparently no discovery had occurred, but the parties had execute d a case management plan that included a summary of Fuselier’s and Spargur’s defe nses. In his answer, Barnhart denied that the amount in controversy exceeded $50, 000, and the district court raised that issue sua sponte at the conference. Pl aintiffs’ counsel presented a report by a “certified arborist” to the district co urt indicating that the commercial value of the damaged trees was approximately $40,00 0. Counsel contended that none of the exceptions to § 72 applied and that the refore the actual damage-4-

amount should be at least tripled, thus satisfying the requirement for the amount in controversy. The following colloquy took place between the court and plaintiffs’ counsel, Walter Haskins:

THE COURT: Is there any basis on which to believe that Mr. Spargur or his agents intentionally chopped down tr ees recognizing the exposure that that would put to a general contr actor in the community? MR. HASKINS: At this point, Your Honor, we don’t know what the motive is. We certainly don’t believe it was casual and involuntary as required by the statute. THE COURT: But a negligent trespass, and that is s imply crossing the line, I mean, you would agree that thi s occasioned extra and unnecessary work for the matter that he was contracted to do, would you not? MR. HASKINS: I think there may be some issues about whether or not it was convenient to do that area to park a trailer on it to gain access to the property as well. We don’t y et know at this point the motive for that, but our statute provides that even if it is negligent, unless it is casual and involuntary, the n the statute applies. THE COURT: Well, casual in this particular instanc e contemplates--I mean, is there anything that you be lieve that has caused this to be intentional, a knowing and willin g-- MR. HASKINS: I think the evidence may indicate that, Your Honor. There was a trailer, as I understand it, parked on the property for a period of time. I think there may be issues of convenience. My clients were not present, they were in Oregon, and I think the evidence may indicate that. Appellants’ App. at 81-82. At the close of the hearing, the court ruled that § 72 “is not applicable in this case, therefore the amou nt sought here is $40,000, and1 We do not read the district court’s ruling, nor doe s Barnhart (the only

defendant to file an appellate brief) contend, thatthe district court made a finding of jurisdictional fact or resolved a factual disput e such that its finding would be subject to review only for clear error, see, e.g. , Holt v. United States , 46 F.3d 1000, 1003 (10th Cir. 1995). Moreover, considering that the district court raised the issue sua sponte at a status conference prior t o discovery and without notice to (continued...) -5- lacking being [the] jurisdictional amount [I] find[ ] that this Court lacks subject matter jurisdiction to resolve this dispute[]. Acc ordingly this case is hereby dismissed without prejudice.” Id. at 86. The court did not state the reason why it concluded the statute did not apply. “When federal subject matter jurisdiction is challe nged based on the amount in controversy requirement, the plaintiffs m ust show that it does not appear to a legal certainty that they cannot recove r at least $50,000.” Watson v. Blankinship , 20 F.3d 383, 386 (10th Cir. 1994) (citing St. Pau l Mercury Indem. Co. v. Red Cab Co. , 303 U.S. 283, 288-89 (1938)). A claim for puniti ve damages, such as provided by the treble or more dam ages provision of § 72, see Maxwell v. Samson Resources Co. , 848 P.2d 1166, 1172-73 (Okla. 1993), may be included in the jurisdictional amount. See Watson , 20 F.3d at 386; see also Anthony v. Security Pac. Fin. Servs., Inc. , 75 F.3d 311, 315 (7th Cir. 1996) (court may take a closer look where punitive damages make up bulk of amount in controversy). We review the district court’s determination that the amount in controversy requirement was not satisfied de novo. See Watson , 20 F.3d at 386. 11 (...continued)

plaintiffs, we question whether the court afforded plaintiffs “an appropriate and reasonable opportunity to show good faith in believ ing that a recovery in excess of the jurisdictional amount is reasonably possible .” A.F.A. Tours, Inc. v. Whitchurch , 937 F.2d 82, 88 (2d Cir. 1991) (quotation and bra ckets omitted); cf. Holt , 46 F.3d at 1003 (“A court has wide discretion to allow affidavits, other documents, and a limited evidentiary hearing to res olve disputed jurisdictional facts under Rule 12(b)(1).”).

2 The court also seemed skeptical of the amount of al leged actual damages, noting that the “esteemed arborist” may have exclud ed “scrub oaks” from his report, replacing them essentially with “towering s equoias.” Appellants’ App. at 83-84. (The arborist’s report apparently was not made part of the district court’s record and is not included in the record on appeal. ) We agree with the district court that the damage estimate of almost $40,000 se ems high, considering that the amount of land involved is less than an eighth of an acre (a small city lot) and the trees were capable of being “destroyed” by a bulldo zer. However, it cannot be said to a legal certainty at this point that actual damages will not be $40,000. Moreover, considering the tripling or more aspect o f § 72 and its provision for recovery of legal fees, the actual damages need notbe very high for the amount in controversy to be satisfied. -6- Although the district court did not explicitly stat e the reason it concluded § 72 did not apply here, it apparently determined t hat plaintiffs would not be able to make the required showing of motive or intent th at the statute requires. 2 We cannot agree that at this point in the case, it is a “legal certainty” that plaintiffs cannot recover more than $50,000. Recovery of at l east treble damages under § 72 may require a showing of intent to trespass an d damage timber, as opposed to simple negligence as plaintiffs’ counsel contend ed, see Maxwell , 848 F.2d at 1173, although this issue was not subject to argume nt in the district court. But even if it is, we do not see why it would be imposs ible to make this showing.3 Moreover, the district court failed to consider § 7 2’s provision for recovery

of attorney fees, which may apply even if the trebl e damages provision does not. See Missouri State Life Ins. Co. v. Jones , 290 U.S. 199, 202 (1933) (statutorily allowed attorney fees may be considered in determin ing the amount in controversy). In the case management plan, plainti ffs estimated their attorney fees at $12,000. (Barnhart estimated his at $14,00 0.) -7- Moreover, while defendants acknowledged the trespas s and some amount of damage, their defenses do not uniformly point to ne gligence as the cause. Barnhart claimed he was simply following the line l aid out by Spargur. In contrast, Spargur claimed that Barnhart became diso riented after having been stung by a number of bees whose hive he had run ove r and that Barnhart strayed over the property line. In any event, particularly considering the state of the case- -not all of the defendants had even answered yet--i t cannot be said to a legal certainty that plaintiffs cannot prove that the tre spass and damage was not casual and involuntary, assuming that is their burden (andnot an affirmative defense). 3
We conclude that the district court erred in dismis sing the case at this point for lack of subject matter jurisdiction. REVERSED and REMANDED.

Entered for the Court

James E. Barrett Senior Circuit Judge