Opinion
Case No. 07-40601, Adversary No. 07-04077.
January 3, 2008
ORDER PARTIALLY GRANTING MOTION FOR PARTIAL RECONSIDERATION AND AMENDING ORDER AND MEMORANDUM DECISION ENTERED DECEMBER 20, 2007
This matter came before the Court upon a Motion for Partial Reconsideration of this Court's Order Awarding Damages Filed December 20, 2007 (Motion) by Rodney Crow (Defendant). The Defendant argues that this Court erred in awarding I. Wayne Cunningham (Plaintiff) treble damages under RCW 64.12.030 for restoration costs of $2,500 and clean-up costs of $1,300. The Defendant states that only the value of the timber removed should be trebled and that the awards for restoration and clean-up costs should be limited to single damages. In regards to the restoration costs, the Court disagrees that such amounts should not be trebled under RCW 64.12.030. The Defendant is incorrect that recovery under RCW 64.12.030 for treble damages is limited to only the value of the trees wrongfully cut. In cases involving the destruction of ornamental trees or shrubs, Washington courts recognize that the proper measure of damages is treble damages for replacement costs. See Sherrell v. Selfors, 73 Wn. App. 596, 602-03, 871 P.2d 168, 172-73 (1994). In this case, the Defendant committed timber trespass in both cutting productive timber and destroying trees and shrubs on the Plaintiff's property that the Plaintiff and the Court considered ornamental. Treble damages are therefore appropriate for both the value of timber taken and the restoration costs of the ornamental trees and shrubs.
In regards to the clean-up costs, the Court agrees that reconsideration of the decision trebling this portion of the damage award is appropriate. Although the Defendant failed to present this argument at trial or provide any citations to support this argument prior to this Motion, the Court has reviewed the cases cited by both sides and agrees that based on the case of Tuthill v. Palermo, 14 Wn. App. 781, 785, 545 P.2d 588 (1976) and the cases cited therein, it would be an error of law to treble this portion of the damage award. Clean-up costs are a normal consequence of the timber trespass and the Plaintiff is compensated for such damages in the treble damages awarded for the tree value and replacement costs. See also Birchler v. Castello Land Co., 133 Wn.2d 106, 113-14, 942 P.2d 968, 971 (1997) (citing Henricksen v. Lyons, 33 Wn. App. 123, 127, 652 P.2d 18, 21 (1982)).
The Court having considered the Defendant's Motion and the Plaintiff's Memorandum in Opposition to Motion for Partial Reconsideration and the arguments contained therein; now therefore, it is hereby ORDERED that the Defendant's Motion for Partial Reconsideration of this Court's Order Awarding Damages Filed December 20, 2007 is granted in part in that the Plaintiff is awarded single damages of $1,300 for the clean-up costs; it is further
ORDERED that the Court's Order Awarding Damages, Establishing Amount of Proof of Claim and Declaring Debt Dischargeable in Bankruptcy is amended to provide that the Plaintiff is awarded damages and entitled to an allowed proof of claim in the Defendant's bankruptcy case in the amount of $52,270; it is further
ORDERED the Court's Memorandum Decision entered on December 20, 2007 is amended accordingly.