Baird v. Crosthwait

United States Court of Appeals
for the Fifth Circuit

No. 19-60762
Summary Calendar

In the Matter of: Allen E. Crosthwait,

Debtor,

David E. Baird,

Appellant,

versus

Allen E. Crosthwait,

Appellee.

Appeal from the United States District Court
for the Northern District of Mississippi
USDC No. 1:18-CV-225

Before Davis, Stewart, and Dennis, Circuit Judges.
Per Curiam:*

*
Pursuant to 5th Circuit Rule 47.5, the court has determined that this
opinion should not be published and is not precedent except under the limited
circumstances set forth in 5th Circuit Rule 47.5.4.
United States Court of Appeals
Fifth Circuit
FILED
December 29, 2020

Lyle W. Cayce
Clerk
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No. 19-60762
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Plaintiff-Appellant David Baird appeals the district court’s order
affirming: (1) the bankruptcy court’s judgment refusing to award him certain
enhanced statutory damages for Defendant-Appellee Allen Crosthwait’s acts
of timber trespass, and (2) the bankruptcy court’s order denying his request
to lift the bankruptcy stay. Concluding that the district court did not err in
affirming the bankruptcy court, we AFFIRM.
I. Background
In 2005, Crosthwait filed a petition for Chapter 11 bankruptcy, which
resulted in imposition of an automatic bankruptcy stay. In 2015, during the
pendency of the bankruptcy proceeding, Baird filed a complaint against
Crosthwait to quiet title and recover damages for timber trespass in state
court, which was removed to bankruptcy court. Baird’s suit alleged that
Crosthwait’s agent cut timber from Baird’s land without Baird’s permission.
Pursuant to Mississippi Code § 95-5-10(1), the bankruptcy court awarded
Baird $112,262.79 in statutory damages plus fees and expenses for the timber
that Crosthwait cut. However, the bankruptcy court concluded that Baird
was not entitled to enhanced damages under Mississippi Code § 95-5-10(2)
because Crosthwait did not act willfully or with reckless disregard for Baird’s
rights in cutting Baird’s timber. The bankruptcy court also declined to lift the
bankruptcy stay to allow Baird to collect on the money judgment it issued.
Baird appealed the bankruptcy court’s orders to the district court.
The district court reviewed the bankruptcy court’s findings of fact for
clear error and conclusions of law de novo. However, the district court noted
that its application of the standards of review was severely limited because
Baird did not file the trial transcript into the record for the court to review.
The district court concluded that the lack of trial transcript rendered Baird
unable to demonstrate that the bankruptcy court’s findings of fact “were
erroneous, much less ‘clearly’ in error.” Moreover, the district court
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determined that the bankruptcy court correctly applied the legal standard laid
out in § 95-5-10(2) in its denial of Baird’s claim for enhanced statutory
damages and that Baird “failed to present sufficient arguments or proof on
appeal to warrant a reversal of [the bankruptcy court]’s order refusing to lift
the [bankruptcy] stay.” Accordingly, the district court affirmed the
bankruptcy court’s rulings.
On appeal to this Court, Baird argues that: (1) he is entitled to
additional damages under § 95-5-10(2) because the bankruptcy court clearly
erred in refusing to find that Crosthwait acted “willful[ly] or at least in
reckless disregard for [Baird’s] rights” in cutting down Baird’s timber; and
(2) the bankruptcy court erred in denying his request to lift the stay so that
Baird can collect the $112,262.79 judgment against Crosthwait.
II. Discussion
This Court reviews “the decision of a district court sitting as an
appellate court in a bankruptcy case by applying the same standards of review
to the bankruptcy court’s findings of fact and conclusions of law as applied
by the district court.”
1
“Acting as a ‘second review court,’” this Court
reviews a bankruptcy court’s legal conclusions de novo and its findings of fact
for clear error.
2
“If [an] appellant intends to urge on appeal that a
finding . . . is unsupported by the evidence or is contrary to the evidence, the
appellant must include in the record a transcript of all evidence relevant to
that finding.”
3

1
Viegelahn v. Lopez (In re Lopez), 897 F.3d 663, 668 (5th Cir. 2018) (citations
omitted).
2
Id. (citations omitted).
3
Fed. R. App. P. 10(2).
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A. Enhanced Damages Under § 95-5-10(2)
Mississippi law provides for enhanced damages for cutting timber on
another’s property without the consent of the owner “[i]f the cutting down,
deadening, destruction or taking away of a tree” is “done willfully, or in
reckless disregard for the rights of the owner of such tree.”
4

In this case, the district court concluded that the bankruptcy court
correctly applied this legal standard, as the bankruptcy court concluded that
“the Defendant did not willfully or recklessly cut the Plaintiff’s timber; thus,
the Plaintiff is not entitled to enhanced damages under § 95-5-10(2).” The
bankruptcy court specifically found that Crosthwait did not act willfully in
cutting down Baird’s trees because Crosthwait “believed that he was having
his own trees cut and had no knowledge that the property line had been
crossed.” The bankruptcy court also found that Crosthwait “did not cut the
timber with reckless disregard for [Baird]’s rights” because Crosthwait had
intended for his agent to only cut his own trees. Because there was no trial
transcript in the record, the district court determined that Baird was unable
to demonstrate any “clear error” in the bankruptcy court’s findings of fact
that would support a reversal of the bankruptcy court’s conclusion on this
issue.
On appeal, Baird argues that “Crosthwait deprived Baird of his
property valued in thousands of dollars” which “was the sort of conduct the
statute was designed to prohibit.” He repeatedly refers to aerial pictures of
the land in question to support his argument that it would be “unreasonable
to conclude that [Crosthwait] acted without intent, and without reckless
disregard.” However, the bare photographs without explanation from trial
testimony are not helpful to Baird. He then attempts to rely on additional

4
Miss. Code. Ann. § 95-5- 10(2).
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facts about alleged telephone conversations that we cannot verify without the
trial transcript.
We agree with the district court that the bankruptcy court applied the
correct legal standard in concluding that Crosthwait’s actions demonstrated
a lack of willfulness or reckless disregard for Baird’s rights. We also agree
with the district court that because there is no trial transcript to consider,
Baird is unable to demonstrate that the bankruptcy court’s findings of fact
“were erroneous, much less ‘clearly’ in error.” The bankruptcy court and
district court therefore did not err in concluding that Baird is not entitled to
enhanced damages under § 95-5-10(2).
B. Bankruptcy Stay
“The bankruptcy court’s denial of a motion for modification of a stay
is reviewed for abuse of discretion.”
5

We agree with the district court that Baird “offers this Court no
authority suggesting that it is authorized to disregard bankruptcy law and to
reverse [the bankruptcy court]’s order refusing to lift the stay.” Baird fails to
make any credible argument how the bankruptcy court and district court
erred in denying his request to lift the stay.
Accordingly, we AFFIRM the judgment of the district court
affirming the bankruptcy court.

5
In re Mirant Corp., 440 F.3d 238, 245 (5th Cir. 2006).
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