Opinion
No. 63677-4-I.
Filed: December 20, 2010. UNPUBLISHED OPINION
Appeal from a judgment of the Superior Court for King County, No. 07-2-21682-1, Richard McDermott, J., entered May 26, 2009.
Affirmed by unpublished opinion per Grosse, J., concurred in by Schindler and Spearman, JJ.
In a timber trespass action, only reasonable costs of restoration or replacement are recoverable, a determination to be made by the finder of fact. Here, there was sufficient evidence from which the jury could make that determination. Accordingly, we affirm.
FACTS
James and Carol Brummond own a rental house in Burien that sits atop a steep bluff above Puget Sound. The Brummonds own a large portion of the steep hillside that descends west toward the adjacent property below, owned by R. Gary Wood. Carol Brummond's understanding of the property boundaries was based on information provided by the former property owner and she believed the Brummonds owned 160 feet of property down the bank to "where it flattens out." This area includes two trees, referred to as Trees 595 and 596 in a survey of the property.
In July 2005, the Brummonds were preparing the house for new renters and noticed that the trees were beginning to encroach on their view of the Puget Sound. They then hired Roger Clark and his business Treebulance Tree Service to cut Trees 595 and 596. On July 29, 2005, Carol Brummond met Clark at the rental house and asked him to cut the tops of Trees 595 and 596. She told Clark to cut the trees so that she would not have to hire him again for five years. Brummond and Clark did not discuss tree ownership. Clark then cut a large portion of both trees and left the top sections as they fell.
The trees were actually planted by Wood in 1982. They were 10 foot Douglas Firs when he planted them and grew over time. He planted Tree 595 on his property, but Tree 596 actually grew on the Brummond side of the property boundary line.
When he discovered the trees had been cut, Wood called the police, requesting that criminal charges be filed against the Brummonds. The authorities declined to do so. Wood then hired a lawyer, and arborist Brian Gilles to advise him on tree restoration. He asked Gilles to provide an estimate of the cost for exactly replacing the trees with the largest trees possible. Gilles estimated that the replacement cost was $11,746.57. But Gilles also told Wood that this option was not standard appraisal practice and advised Wood that "[s]tandard practice is to value the loss of the trees based upon the largest commonly available transportable tree in the region." He estimated that in Wood's case, that value was $7,358.00.
In January 2006, Wood hired another arborist, Scott Baker, and his company Tree Solutions, Inc., to organize and supervise the tree replacement. Baker planted two large Silver Fir trees that were 10 inches in diameter. One was 27 feet tall and the other was 25 feet tall and they weighed 9,000 pounds each. Replacement required a crane, scaffolding, road closure, substantial construction, a week of labor, and a team of 12 to 14 men. The project cost Wood $96,171.77. One of the new trees died from damage that occurred during the planting process. Wood did not replace it with another large mature tree, but instead planted several smaller trees at a lower cost.
In June 2007, Wood sued the Brummonds and Clark (referred to collectively as "defendants"), alleging timber trespass in violation of RCW 64.12.030. Wood sought treble damages in the amount of $308,639.37 and general damages. Wood moved for summary judgment, but the trial court denied the motion, finding that unresolved issues of material fact precluded summary judgment. The case was then tried to a jury. At the conclusion of the evidence, Wood moved for judgment as a matter of law, but the trial court denied the motion.
The jury returned a verdict in favor of Wood, awarding him $6,854.00. The jury apportioned 65 percent of the combined fault to the Brummonds and 35 percent to Clark. The jury also determined that both defendants met their burden of proving mitigation and, accordingly, did not award treble damages. The jury did not award any general damages. Following the verdict, Wood moved for a new trial. The court denied the motion and entered judgment on the verdict. Wood appeals.
ANALYSIS
I. Summary Judgment Motion
Wood first challenges the trial court's denial of his summary judgment motion. His motion sought a ruling that as a matter of law that (1) the sole measure of damages was replacement cost of the cut trees, (2) Tree 596 straddled the boundary line between the properties, entitling Wood to a 50 percent ownership interest in it, (3) the defendants failed to prove a mitigating circumstance, (4) Wood's replacement costs damages are $93,986.41, and (5) Wood was entitled to emotional distress damages. The trial court denied the motion, finding, "[t]here are unresolved issues of material fact precluding summary judgment." The court further found:
There is no issue of material fact that the base of Tree 596 is on the Brummond property, and Tree 595 is on the Wood property. The court finds that Mrs. Brummond had probable cause to believe that Tree 596 was on her property, yet there exists a material issue of fact as to whether she had probable cause to believe Tree 595 was on her property.
Wood acknowledges that there is no appeal as of right from the denial of a summary judgment order, but urges the court to exercise its discretion and review it here because the facts were undisputed and the issue can be decided as a matter of law. He contends that doing so would serve the interests of judicial economy because reviewing the summary judgment denial would prevent the court from having to review the rest of the issues that arose during trial and would render a second trial unnecessary. But in fact, the basis for the trial court's denial of the motion was that there did exist material disputed facts and there was a trial on the merits that resolved those disputed factual issues. Under these circumstances, a denial of a summary judgment motion is not reviewable. In any event, the trial court correctly concluded that there were disputed issues of fact.
See Lopez v. Reynoso, 129 Wn. App. 165, 174, 118 P.3d 398 (2005) ("After a trial on the merits, we will not review a trial court's denial of a motion for summary judgment if the denial was based on the presence of material disputed facts.").
On the damages issue, there was conflicting evidence about the appropriate replacement cost. Wood claimed damages in excess of $96,000 based on the actual replacement cost, but a defense expert estimated a replacement cost of $3,447.08, and the initial estimate Wood obtained was at most $11,746.57. While Wood is correct that the case law recognizes that the standard measure of damages for the loss of ornamental trees in suits brought under the timber trespass statute is the restoration cost or diminution in property value, the case law also recognizes that "only reasonable costs of replacing destroyed trees with identical or substantially similar trees may be recovered," and that the damage award is an issue to be resolved by the trier of fact. Thus, the issue of damages was properly left to the jury as a question of reasonableness and denial of summary judgment was proper.
Happy Bunch, LLC v. Grandview North, LLC, 142 Wn. App. 81, 173 P.3d 959 (2007).
Allyn v. Boe, 87 Wn. App. 722, 734, 943 P.2d 364 (1997) (emphasis omitted).
Tatum v. R R Cable, Inc., 30 Wn. App. 580, 583, 636 P.2d 508 (1981), overruled on other grounds by Beckman v. Spokane Transit Auth., 107 Wn.2d 785, 733 P.2d 960 (1987) (upholding award of damages based on restoration costs for ornamental trees as within the purview of the trier of fact); Sherrell v. Selfors, 73 Wn. App. 596, 603, 871 P.2d 168 (1994) (holding that trial court did not err by calculating damages based on replacement costs for ornamental trees).
Wood's reliance on Allyn v. Boe is misplaced. He asserts that under Allyn, his actual costs were reasonable as a matter of law because they did not exceed his property value. But Allyn did not hold that damages are reasonable as a matter of law if they do not exceed the underlying property value, as Wood suggests. Rather, Allyn held that "although timber trespass damages may exceed the value of the underlying property in the proper case, the damages must still be reasonable in relation to the value of the property."
87 Wn. App. 722, 734, 943 P.2d 364 (1997).
There was also a material issue of fact precluding summary judgment on the mitigation issue. Treble damages will not be awarded in a timber trespass action if a defendant can establish mitigation under RCW 64.12.040, which provides:
If upon trial of such action it shall appear that the trespass was casual or involuntary, or that the defendant had probable cause to believe that the land on which such trespass was committed was his own, or that of the person in whose service or by whose direction the act was done, or that such tree or timber was taken from un[e]nclosed woodlands, for the purpose of repairing any public highway or bridge upon the land or adjoining it, judgment shall only be given for single damages.
Here, the defendants produced sufficient evidence to raise an issue of fact on whether they established mitigation: there were no visible boundary markers at the time of the cutting because they were covered by dirt and leaves and no noticeable difference in the landscape between the two properties; Carol Brummond's understanding that they owned 160 feet of property down the bank to "where it flattens out" was based on her conversations with the previous property owners and this area included both trees; Tree 595 was only 1.2 feet on Wood's side of the property line and due to the unusual angle of the property line, it appeared slightly uphill and actually closer to the Brummonds' house than the other tree; Carol Brummond conveyed to Clark her belief of ownership of the tree, and Clark had cut trees for Carol in the past and there had been no ownership dispute.
Woods contends that the defendants failed to establish sufficient evidence of mitigation, relying on Sherrell v. Selfors. In Sherrell, the court upheld the trial court's findings after a bench trial that the defendants did not meet their burden of proving mitigation and that their conduct in cutting the trees at issue was not casual or involuntary. The evidence showed that the property line was clearly marked with pins and white stakes next to the pins, no survey was done, no neighbors or others familiar with the property were contacted, and the owner of the trees was not notified. But the court also reiterated that "the question of whether one acted `willfully' for purposes of trebling damages is a factual issue for the trier of fact and the court's factual findings as to willfulness will not be disturbed if based on substantial evidence." The court then noted that there was sufficient evidence to support the trial court's finding that the boundary line could be reasonably ascertained.
73 Wn. App. 596, 871 P.2d 168 (1994).
Sherrell, 73 Wn. App. at 604.
Sherrell, 73 Wn. App. at 604.
Sherrell, 73 Wn. App. at 604.
Thus, Sherrell did not address the evidence necessary to support a prima facie case of mitigation for purposes of surviving summary judgment, as Wood suggests. Rather, Sherrell addressed the defendant's burden of proof at trial, a much higher standard of proof. Additionally, the facts in Sherrell are distinguishable; the defendants here produced evidence that the boundary was not clearly marked and that there was contact with the prior owners about the boundary line.
Additionally, while Wood is correct that Sherrell recognized that "[i]t is not a mitigating factor for the trespasser to be acting in good faith," there the trial court did not in fact find good faith, as Wood suggests. 73 Wn. App. at 604.
Wood further contends that the court erred by failing to rule as a matter of law that he had a 50 percent ownership in the Tree 596. But the undisputed evidence shows that the base of the tree was located on the Brummonds' property. As the defendants point out, there is no case law that addresses ownership of trees that come out of the ground on one property and have upper parts that cross into the airspace of another's property.
Wood improperly relies on Happy Bunch v. Grandview North, LLC, a case in which the trees in dispute were actually located on the boundary line between adjacent properties owned by the parties. Part of the trees grew onto Grandview's property and Happy Bunch sued Grandview for cutting the trees. The trial court ruled that because the cut trees straddled the common property line, Grandview had an interest in them proportionate to the percentage of their trunks growing on Grandview's property. On appeal, the court affirmed, holding that "[a] tree, standing directly upon the line between adjoining owners, so that the line passes through it, is the common property of both parties, whether marked or not; and trespass will lie if one cuts and destroys it without the consent of the other."
142 Wn. App. 81, 173 P.3d 959 (2007).
Happy Bunch, 142 Wn. App. at 85.
Happy Bunch, 142 Wn. App. at 88, 93.
Happy Bunch, 142 Wn. App. at 93 (citations omitted).
But here, the tree did not stand directly upon the boundary line; it was on the Brummond's side of the boundary line. Thus, Happy Bunch does not apply. Rather, as the defendants contend, the Brummonds had sole ownership of the tree.
As the defendants note, this conclusion is also supported by the A.L.R.:
Unlike cases where a tree's trunk grows into the boundary line between adjoining premises, trees or other plants whose trunks or bases are situated entirely on one parcel of land have been found to belong to the owner of that parcel, irrespective of the penetration into neighboring property by any of its other portions. 65 A.L.R. 4th 603, 616-17 (1988).
Finally, Wood contends that the trial court erred by failing to rule that he was entitled to emotional distress damages as a matter of law once the timber trespass was proved. But as the defendants contend, emotional distress damages are only available upon a finding of willfulness and this was a disputed issue of fact. In Birchler v. Castello Land Co., our state Supreme Court recognized that emotional distress damages are available under RCW 64.12.030. In doing so, the court concluded that "[a]n intentional interference with a property interest is required before emotional distress damages may be awarded under RCW 64.12.030." As the court explained:
133 Wn.2d 106, 116-17, 942 P.2d 968 (1997).
Birchler, 133 Wn.2d at 117 n. 5.
We have interpreted RCW 64.12.030 to require "willful" trespass while our cases pertaining [sic] allowing emotional distress damages in the property context require an "intentional" interference with a property interest. In this case, Castello and Hayes conceded below that willful and wanton conduct for purposes of RCW 64.12.030 was deemed intentional conduct. Moreover, the jury was instructed that emotional distress damages were recoverable only if the defendants engaged in "intentional wrongdoing."
Birchler, 133 Wn.2d at 117 n. 5 (citations omitted); see also White River Estates v. Hiltbruner, 134 Wn.2d 761, 766, 953 P.2d 796 (1998) (citing Birchler, 133 Wn.2d at 116) (reiterating that emotional distress damages are available for "willful" violation of timber trespass statute).
Thus, contrary to Wood's contentions, a showing of intentional or willful conduct is necessary before emotional distress damages can be awarded. Because willfulness was a disputed factual issue, summary judgment was properly denied.
Wood points to Trotzer v. Vig, 149 Wn. App. 594, 203 P.3d 1056 (2009), where the trial court awarded emotional distress damages despite the fact that mitigation was also proved, as support for his argument that a showing of intentional or willful conduct is not necessary to recover emotional distress damages. But in Trotzer, the emotional distress damages were not challenged on appeal and the court did not address whether a showing of willfulness was required to recover those damages. Rather, the plaintiff challenged the court's denial of treble damages and the court held that treble damages were not recoverable because the evidence supported a finding that the timber trespass was not willful. 149 Wn. App. at 610-12.
Wood's challenge to the trial court's denial of his motion for judgment on the issues of damages, mitigation, and availability of emotional distress damages likewise fails. Judgment as a matter of law is proper only when, viewed in the light most favorable to the nonmoving party, the evidence and reasonable inferences therefrom are insufficient to support the verdict. Just as in the summary judgment phase, there was sufficient evidence produced at trial from which the jury could find for the defendants on these issues. Thus, the trial court properly denied Wood's motion for judgment as a matter of law.
Chausee v. Maryland Casualty Co., 60 Wn. App. 504, 508, 803 P.2d 1339 (1991) (citing Campbell v. ITW Imperial Corp., 107 Wn.2d 807, 817-18, 733 P.2d 969 (1987)).
We note that evidence of the first estimate Wood obtained from Gilles was not presented at trial.
II. Defense Expert Testimony on Damage Estimate
Wood next challenges the trial court's denial of his motion in limine to exclude expert testimony from defense witness Favero Greenforest that Wood's reasonable restoration cost was $3,447.08. Greenforest's estimate included the cost of planting smaller and more trees, tree delivery and installation, irrigation system installation, water, and post-restoration maintenance. His calculation was based on a text recognized and accepted by arborists for tree appraisal and city of Burien ordinances. Additionally, he performed a site visit, contacted the city of Burien and a large tree provider, reviewed water costs, and obtained an estimate from a contractor for an irrigation system.
Wood contends that this estimate should have been excluded as irrelevant because it was based on the Trunk Formula Method and does not return Wood to his exact pre-trespass condition. We review trial court rulings on the admissibility of evidence for an abuse of discretion. ER 401 defines relevance as "having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence."
State v. Finch, 137 Wn.2d 792, 810, 975 P.2d 967 (1999).
As discussed above, the standard measure of damages for timber trespass violations under RCW 64.12.030 is the restoration cost or diminution in property value, and "only reasonable costs of replacing destroyed trees with identical or substantially similar trees may be recovered." Such damages must be proven "with reasonable certainty or be supported by competent evidence in the record." But "[r]ecovery should not be denied because the extent or amount of damages cannot be ascertained with mathematical precision, provided the evidence is sufficient to afford a reasonable basis for estimating losses."
Happy Bunch, 142 Wn. App. 81.
Allyn, 87 Wn. App. at 734 (emphasis omitted).
Sherrell, 73 Wn. App. at 601.
Here, Greenforest's testimony provided an estimate of restoration or replacement that was relevant to the reasonableness of the damages award. While the defendants concede that this estimate does not put Wood in the exact same position as before the trespass, it still relates to the question of reasonableness of the restoration cost, a factual matter for the jury's determination. In fact, as the defendants point out, Wood's own restoration project did not put him in the exact position before the trespass: the replacement trees he planted were different from the damaged trees, and he ended up replacing one of them with a few smaller trees after it died during the planting process. The jury properly considered evidence of all of these replacement options as part of the determination of the reasonableness of the damages award.
Wood also contends that Greenforest's use of the Trunk Formula Method and his reference to city code provisions and practices about minimal restoration requirements was improper and misleading to the jury. But again this goes to the weight (i.e., the degree of reasonableness), not the sufficiency of the evidence, and he had an opportunity to challenge this, as he did, at trial. Indeed, the fact that the verdict was actually more than Greenforest's estimate demonstrates that the jury considered the range of evidence presented on the damages issue.
III. Expert Testimony on Critical Area Permits
Wood further challenges the court's exclusion of expert testimony that a critical use permit was required to cut his trees. He sought to introduce evidence that the area where the trees were located was a critical use area that required a permit to cut them and that neither the Brummonds nor Clark requested a permit. He contends that without this evidence he could not explain to the jury that a boundary marker was unnecessary since the trees were legally protected and to explain why the cutting of the trees had such a profound effect on him.
But as the defendants contend, this was irrelevant to the issues at trial. To find liability, the jury had to determine that the defendants willfully cut the trees without Wood's permission, a determination that involves consideration of the location of the trees and the defendants' knowledge of the trees' ownership. That a permit was also required to cut these trees does not bear on this determination. The only arguable relevance of the fact that the trees were in a critical use area goes to the emotional distress damages issue. But because the jury found that the cutting was not willful, such damages were not available. Thus, at most, any error in excluding such evidence was harmless.
See RCW 64.12.030; RCW 64.12.040.
IV. Jury Instructions
Wood next challenges the court's denial of his proposed jury instructions 19 and 26 on the issue of damages. Proposed instruction 19 states, "The purpose of damages is to return an injured party as nearly as possible to the condition in which it would have been had the wrong not occurred." Proposed instruction 26 states, "Although timber trespass damages may exceed the value of the underlying property, the damages must be reasonable in relation to the value of the property."
But Wood failed to object to the court's refusal to give these instructions, as required by CR 51(f). CR 51(f) provides in pertinent part:
Counsel shall . . . be afforded an opportunity . . . to make objections to the giving of any instruction and to the refusal to give a requested instruction. The objector shall state distinctly the matter to which he objects and the grounds of his objection, specifying the number, paragraph or particular part of the instruction to be given or refused and to which objection is made.
Wood was given an opportunity to state his objections to the instructions, but did not object to the court's refusal to give the above instructions. Accordingly, he has failed to preserve these claimed instructional errors for review.
He only objected to the court's refusal to give proposed instructions 34, 35, 39, 40, 43, and 46.
See Trueax v. Ernst Home Center, 124 Wn.2d 334, 341-42, 878 P.2d 1208 (1994) (holding that by failing to object to trial court's refusal give proposed instruction, party did not preserve instructional error for review in accordance with CR 51(f)).
Wood also challenges the court's instructions on willfulness, instructions 10 and 11. Specifically, he objects, as he did at trial, to the language in instruction 10, stating that a finding of willfulness was necessary to award emotional distress damages. But as discussed above, this is a proper statement of the law. Accordingly, the trial court did not err by giving this instruction. Wood failed to object at trial to instruction 11 and has therefore waived any challenge to it on appeal.
See Birchler, 133 Wn.2d at 117 n. 5.
V. Motion for New Trial
Finally, Wood challenges the court's denial of his motion for a new trial, contending that the jury verdict was outside of the evidence, was based on passion or prejudice, lacked a factual or legal basis for failing to award emotional distress damages, and was not based on sufficient evidence of mitigation. Generally, a trial court's ruling on a motion for a new trial will not be disturbed on appeal absent a showing of a clear abuse of discretion. There is a strong presumption of validity of jury verdicts on damages, but those verdicts must be supported by the evidence. So long as the verdict is within the range of evidence, the trial court has no power to disturb the jury's award. Only if the jury's verdict conflicts with the uncontroverted evidence, the presumption of the validity of the verdict may be overcome.
Cox v. GM Corp., 64 Wn. App. 823, 826, 827 P.2d 1052 (1992).
Himango v. Prime Time Broadcasting, Inc., 37 Wn. App. 259, 268, 680 P.2d 432 (1984).
Wooldridge v. Woolett, 96 Wn.2d 659, 668, 638 P.2d 566 (1981).
Shaw v. Browning, 59 Wn.2d 133, 135, 367 P.2d 17 (1961).
As discussed above, the jury heard testimony about various estimates of restoration cost, ranging from $3,000 to $95,000. Thus, the verdict of $6,854.00 fell within that range. The jury was also free to reject any damage evidence as unreasonable or unnecessary. Wood contends that the jury verdict on damages was outside the evidence because no evidence was offered challenging the reasonableness of the costs or the necessity of obtaining pre-restoration services, debris removal services, boundary line survey, investigator services, and pre-project arborist services. But as the defendants point out, there was conflicting evidence presented about the reasonableness or necessity of investigation services and the second survey. Wood also fails to show that the verdict was a result of passion or prejudice. His arguments simply bear on the credibility of the evidence, determinations that are properly left to the jury.
Nor has Wood shown that the verdict was either legally or factually invalid for failing to award emotional distress damages. As discussed above, such damages were only recoverable upon a finding of willfulness, the jury was so instructed and there was sufficient evidence from which a jury could find that the conduct was not willful. Because the jury made such a finding, there was no basis for the award, regardless of whether the jury heard evidence of the emotional effect of the tree cutting on Wood. Finally, as discussed above, the evidence was sufficient to support the jury's mitigation finding; it did not simply establish good faith, as Wood asserts.
We affirm.
WE CONCUR.