Donald Patton v. J & K Logging, L.L.C.

Case: 16-60836 Document: 00514047036 Page: 1 Date Filed: 06/23/2017

REVISED June 23, 2017

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals

No. 16-60836
Fifth Circuit

FILED
June 21, 2017

DONALD PATTON, Lyle W. Cayce
Clerk
Plaintiff - Appellant

v.

J & K LOGGING, L.L.C.,

Defendant - Appellee

Appeal from the United States District Court
for the Southern District of Mississippi

Before DAVIS, SOUTHWICK, and HIGGINSON, Circuit Judges.
PER CURIAM:*
Plaintiff Donald Patton appeals the district court’s grant of summary
judgment in favor of Defendant J & K Logging, L.L.C. (“J & K”). Patton argues
that the evidence shows J & K removed more logs from his property and a
higher quality of logs than he was paid for, demonstrating a genuine dispute
of material fact. J & K points to log load registers that show it removed a

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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No. 16-60836
certain amount of timber from Patton’s property and paid him for it pursuant
to the contract. We agree that Patton produced no summary judgment
evidence to refute this documentary evidence. We therefore AFFIRM.
Patton entered into a sale and timber removal contract with J & K after
a third party and J & K’s owner estimated that the timber on his property was
worth about $200,000. The written contract between Patton and J & K
provided that Patton would be paid $14.00/ton for pine pulpwood, $33.00/ton
for pine logs, $46.00/ton for pine poles, $22.00/ton for small logs, and $17.00/ton
for pine chip-n-saw. Pursuant to the contract, J & K removed the timber on
Patton’s property and paid him approximately $100,000.
Upon receiving less than half of the estimated value of the timber, Patton
brought claims under Mississippi state law for timber trespass, breach of
contract, conversion, conspiracy to defraud, negligence, gross negligence, bad
faith, and breach of fiduciary duty. The district court dismissed Patton’s
timber trespass claim and J & K moved for summary judgment on all
remaining claims. The district court’s careful opinion examined each claim
and held that J & K carried its burden to demonstrate the absence of genuine
issues of material fact.
We review de novo a grant of summary judgment, applying the same
standard as the district court. 1 The moving party has the burden of proving
there is no genuine dispute of material fact and that it is entitled to judgment
as a matter of law. 2
Patton argues that the record demonstrates that the type of timber
removed from his property was omitted from various forms. So as to this
timber, Patton argues J & K likely paid him for less valuable timber, like pine

1 In re Dallas Roadster, Ltd., 846 F.3d 112, 123 (5th Cir. 2017) (citations omitted).
2 FED. R. CIV. P. 56(a).
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No. 16-60836
pulpwood, when J & K actually hauled off more valuable pine logs or poles.
Patton also asserts that J & K did not pay him for all the timber removed from
his property. Patton’s only support for these arguments in the record is that
there are discrepancies between certain log load registers, gate tickets, and
purchase orders that show where timber was taken from his property, and for
which no payment was remitted. Patton points to three specific load numbers
where the load register form appears blank. All of these facts, Patton argues,
creates genuine issues of material fact, which renders summary judgment
inappropriate.
J & K asserts that the log load registers and gate tickets Patton points
to match the purchase orders showing that Patton was paid the correct
amount. J & K also explains in brief that workers used “ditto” marks on the
forms in question because the same product was taken from the same location
to the same mill. These ditto marks on the forms are in some instances faint
and some lines may appear blank, but the marks are nonetheless present.
Looking at the documents together, the load numbers can be cross-referenced
with gate tickets and specific purchase orders showing Patton was paid for
what was harvested from his property.
We agree with the district court that J & K has carried its burden to
show an absence of genuine issues of material fact. Our examination of the
record confirms that the log load registers, gate tickets, and purchase orders
show that Patton was paid pursuant to the contract for the timber harvested
from his property. Based on the reasoning above and the reasons set forth in
the careful opinion of the district court, we AFFIRM the district court’s
judgment.

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