Opinion
No. 39667-0-II.
Filed: January 4, 2011. UNPUBLISHED OPINION
Appeal from a judgment of the Superior Court for Clark County, No. 06-2-05917-8, John P. Wulle, J., entered August 24, 2009.
Affirmed in part and reversed in part by unpublished opinion per Armstrong, J., concurred in by Worswick, A.C.J., and Taylor, J. Pro Tem.
Spencer and Mary Dick sued Francis and Jane Doe Chenette for timber trespass. We granted the parties' cross-petitions for discretionary review of three trial court rulings: (1) granting summary judgment restricting the Dicks' potential damages to stumpage value; (2) denying summary judgment on whether a drainage ditch running between the adjoining properties is a boundary line by mutual recognition and acquiescence; and (3) granting a motion in limine restricting Francis Chenette's testimony under the deadman's statute, RCW 5.60.030. We reverse the trial court's rulings restricting damages to stumpage value and restricting Chenette's testimony under the deadman's statute and affirm the trial court's denial of summary judgment on the boundary line issue.
FACTS
The Dicks and the Chenettes owned adjoining properties along the Lewis River near Battle Ground, Washington. Both properties connect to a main road via gravel access roads. The access roads run parallel to each other and are separated by a narrow strip of wooded land with a drainage ditch running down the center.
When the Chenettes purchased their property in 1963, the Dicks' property was owned by a corporation called Playhaven, Inc. The Playhaven members sold their individual interests in the property to Julia Hennessee in 1989, and Hennessee sold the property to the Dicks in 2004.
In 2005, the Chenettes sold their property to Lyndon Fisher. The sales agreement allowed the Chenettes to remove all merchantable timber from the property. The Chenettes believed that the drainage ditch was the property line and removed trees in the area between their access road and the ditch. The timber's stumpage value was $3,737.96. The Dicks hired a professional land surveyor who determined that the boundary line between the access roads is east of the ditch and that many of the trees the Chenettes removed were located on the Dicks' property or on the boundary line.
Stumpage value is the net receipt after payment to the contracted logger.
The Dicks sued the Chenettes in Clark County Superior Court for timber trespass under RCW 64.12.030. The Dicks and the Chenettes both moved for summary judgment on whether: (1) the proper measure of damages is restoration cost or stumpage value; (2) the boundary line is the drainage ditch under the doctrine of boundary acquiescence; and (3) the deadman's statute, RCW 5.60.030, restricts Francis Chenette from testifying to Playhaven's use of the property. The trial court ruled that (1) the Dicks' damages, if any, will be based on stumpage value; (2) genuine issues of material fact exist regarding whether the ditch is the boundary by acquiescence; and (3) Francis Chenette can testify to Playhaven's use of the property, but not his impression of whether Playhaven believed the ditch was the boundary line. We granted the parties' cross-petitions for discretionary review of these rulings.
The Dicks' limited liability company, 88th Street LLC, is also a plaintiff in this proceeding.
ANALYSIS I. Standard of Review
We review summary judgment orders de novo. Ranger Ins. Co. v. Pierce County, 164 Wn.2d 545, 552, 192 P.3d 886 (2008). Summary judgment is appropriate if, when viewing the facts in the light most favorable to the nonmoving party, there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. CR 56(c); Ranger Ins., 164 Wn.2d at 552. A genuine issue of material fact exists when reasonable minds could reach different conclusions. Michael v. Mosquera-Lacy, 165 Wn.2d 595, 601, 200 P.3d 695 (2009).
Summary judgment is subject to a burden-shifting scheme. Michael, 165 Wn.2d at 601; Ranger Ins., 164 Wn.2d at 552. The moving party initially bears the burden of submitting adequate affidavits showing that it is entitled to judgment as a matter of law. Michael, 165 Wn.2d at 601; Ranger Ins., 164 Wn.2d at 552. If the moving party does not sustain its burden, the trial court should deny summary judgment "regardless of whether the nonmoving party has submitted affidavits or other evidence in opposition to the motion." Hash v. Children's Orthopedic Hosp. Med. Ctr., 110 Wn.2d 912, 915, 757 P.2d 507 (1988). If the moving party has met its burden, the burden shifts to the nonmoving party to set forth "`specific facts which sufficiently rebut the moving party's contentions and disclose the existence of a genuine issue as to a material fact.'" Ranger Ins., 164 Wn.2d at 552 (quoting Meyer v. Univ. of Wash., 105 Wn.2d 847, 852, 719 P.2d 98 (1986)); Hash, 110 Wn.2d at 915.
II. Damages
The Dicks first assign error to the trial court's ruling that their damages, if any, are limited to stumpage value. The Dicks moved for summary judgment on the measure for damages, arguing that the severed trees were ornamental and the appropriate measure of damages is restoration value. The Chenettes opposed the Dicks' motion and also moved for summary judgment, arguing that the severed trees were timber and the appropriate measure of damages is stumpage value.
A. Measure of Damages for Timber Trespass
The appropriate measure of damages for timber trespass depends on the type of tree that was damaged. When the damage is to timber, the appropriate measure of damages is the stumpage value of the severed trees. When the damage is to ornamental trees and shrubs on recreational or residential property, the appropriate measure of damages is restoration value. Sherrell v. Selfors, 73 Wn. App. 596, 602-03, 871 P.2d 168 (1994); see also Birchler v. Castello Land Co. Inc., 133 Wn.2d 106, 111-12, 942 P.2d 968 (1997); Hill v. Cox, 110 Wn. App. 394, 404-05, 41 P.3d 495 (2002); Tatum v. R R Cable, Inc., 30 Wn. App. 580, 582-83, 636 P.2d 508 (1981), overruled on other grounds by Beckmann v. Spokane Transit Auth., 107 Wn.2d 785, 733 P.2d 960 (1987).
The term "ornamental" distinguishes trees grown for timber or production from trees "whose primary function and value is essentially noncommercial in nature." Sherrell, 73 Wn. App. at 603. Several courts have held that native trees can be ornamental, even though they were not deliberately planted by the property owner, where the trees function as a buffer from noise and dust, provide a visual screen for the property, and enhance the property's aesthetic value. See Hill, 110 Wn. App. at 404-05; Sherrell, 73 Wn. App. at 603; Tatum, 30 Wn. App. at 582-83.
B. Burdens on Summary Judgment
The Dicks met their initial burden of submitting adequate affidavits to establish that the severed trees were ornamental trees on recreational property. They supported their motion with Spencer Dick's deposition, in which he testified that he purchased the property for recreational purposes: "I wanted a retreat. I wanted a place that was nearby on a river that was sort of a casual summer home or a place to spend time on the weekends." Clerk's Papers (CP) at 31. He also testified that the severed trees enhanced the property's privacy and aesthetic value:
[I]t was part of the allure of this property the first time I went down there, walking down there with the realtor on this beautiful sunny day, walking through this tunnel of trees that filtered the light down onto the road and the sense of moving away from the world and a sense of going to [a] place that was special and exclusive, in a place that you could have privacy. . . .
[P]ersonally, I put a very high value on that sense of privacy and that sense of beauty, and they were just really beautiful trees and they did something special for the piece of property to have that long beautiful tunnel of shaded and private entry.
CP at 33.
The Chenettes also met their initial burden of submitting adequate affidavits to establish that the severed trees were timber. They supported their motion for summary judgment with county documents showing that the Dicks' property is valued as timber land for tax purposes under chapter 84.34 RCW. "Timber land" is defined as land "devoted primarily to the growth and harvest of timber for commercial purposes." RCW 84.34.020(3). They also submitted the declaration of a certified arborist and forester who testified that much of the land in the vicinity of the Dicks' property is managed for commercial timber production.
Under chapter 84.34 RCW, property owners may apply to designate qualifying property as open space, agricultural, or timber land. See RCW 84.34.020, .030. The value of the property is then assessed for tax purposes based on its current use, rather than potential uses (such as selling the land for development). See RCW 84.34.060; Van Buren v. Miller, 22 Wn. App. 836, 837-38, 592 P.2d 671 (1979). The purpose of this tax classification scheme is to "maintain, preserve, conserve and otherwise continue in existence adequate open space lands for the production of food, fiber and forest crops, and to [en]sure the use and enjoyment of natural resources and scenic beauty for the economic and social well-being of the state and its citizens." RCW 84.34.010.
C. Genuine Issue of Material Fact
However, the Chenettes' evidence did not conclusively rebut the Dicks' evidence and establish as a matter of law that all of the trees on the Dicks' property, including the trees lining the access road, were timber. The Dicks contend, and the Chenettes do not dispute, that their access road and the trees lining the road are not included in the timber land tax classification. Furthermore, the tax classification applies to land primarily devoted to cultivating timber, not land exclusively devoted to cultivating timber. See RCW 84.34.020(3). Thus, the tax classification does not prevent "timber land" from also being used for recreational purposes or from containing some ornamental trees.
Because both parties met their initial burden of submitting facts sufficient to support their claims, and because reasonable minds could differ as to whether the severed trees were ornamental or timber, we reverse the trial court's ruling and hold that a genuine issue of material fact precludes summary judgment on the appropriate measure of damages. Michael, 165 Wn.2d at 601; Ranger Ins., 164 Wn.2d at 552.
III. Mutual Recognition and Acquiescence
The Dicks and the Chenettes, as cross-appellants, both assign error to the trial court's ruling that genuine issues of material fact preclude summary judgment on whether the drainage ditch is the boundary line by acquiescence. Because neither party sustained their initial burden of submitting facts sufficient to establish that they are entitled to summary judgment, we affirm the trial court's ruling denying summary judgment on the boundary line issue. See Michael, 165 Wn.2d at 601-02; Ranger Ins., 164 Wn.2d at 552; Hash, 110 Wn.2d at 915. Although the Dicks argue on appeal that they are entitled to summary judgment because the Chenettes failed to produce sufficient evidence to support their claim, they did not properly move for summary judgment on this basis before the trial court. Accordingly, we decline to reverse the trial court's ruling on that basis.
A. Elements of Boundary Acquiescence
To establish a boundary by acquiescence, the party claiming title to the land must prove by clear, cogent, and convincing evidence: (1) the line is "certain, well defined, and in some fashion physically designated upon the ground"; (2) the adjoining property owners, or their predecessors in interest, have manifested a mutual recognition and acceptance of the designated line as the true boundary line "by their acts, occupancy, and improvements" on their respective properties; and (3) mutual recognition and acquiescence continued for the period of time necessary to establish adverse possession (10 years). Lamm v. McTighe, 72 Wn.2d 587, 593, 434 P.2d 565 (1967); see also Merriman v. Cokeley, 168 Wn.2d 627, 630, 230 P.3d 162 (2010). Evidence is "clear, cogent, and convincing" if it shows the ultimate facts are "highly probable." Merriman, 168 Wn.2d at 630-31.
B. Burdens on Summary Judgment
The Dicks first moved for summary judgment on the boundary line issue, arguing that the drainage ditch does not constitute a clear, well-defined boundary because it is "merely a natural feature" that "may have been created by natural water flow or other similar circumstances." CP at 13. They asked the trial court to rule that the surveyed line is the boundary line. But the Dicks did not submit any affidavits or other evidence describing the ditch or supporting their contention that the ditch is a natural feature and, therefore, did not sustain their initial burden of submitting adequate affidavits establishing that the ditch is an insufficient boundary line. Michael, 165 Wn.2d at 601-02; Ranger Ins., 164 Wn.2d at 552. Additionally, the law does not prevent a natural feature such as a ditch from functioning as a boundary line if it is well-defined, physically designated on the ground, and the adjoining property owners acquiesce, through their statements or actions, to the ditch as the boundary for at least 10 years. See Lamm, 72 Wn.2d at 593; see generally Chaplin v. Sanders, 100 Wn.2d 853, 676 P.2d 431 (1984) (holding a drainage ditch is a boundary line under the doctrine of adverse possession).
The Chenettes opposed the Dicks' motion and also moved for summary judgment on the boundary line issue, arguing that the ditch fulfills all of the elements of a boundary line by acquiescence. They supported their motion with a declaration by Francis Chenette, who testified that the drainage ditch runs parallel to the access roads, straight down the center of the median; the ditch has been present since at least the 1960s; Playhaven maintained the ditch "from time to time" with a backhoe; Playhaven and the Chenettes each maintained the property on their respective sides of the ditch; and the Chenettes sprayed herbicides on their side of the ditch "from time to time." CP at 66. The Chenettes also submitted a declaration by Ron Aspass, the son of a Playhaven member, who testified that he visited the property frequently as a child and remembered: "Mr. Chenette would clear brush and trees on his side of the ditch along the access roads, and the Playhaven owners (including my father) would clear brush and maintain the road strip on the west side of the ditch." CP at 64. Finally, the Chenettes submitted a photograph showing a dirt ditch in a wooded median between two roads. The edges of the ditch appear to be overgrown with brush, roots, and trees.
Thus, the facts are not in dispute because the Dicks did not submit any evidence contradicting the facts set forth by the Chenettes. But we hold that the Chenettes have also failed to meet their initial burden of submitting adequate affidavits to establish that they are entitled to summary judgment as a matter of law. See Michael, 165 Wn.2d at 601-02; Ranger Ins., 164 Wn.2d at 552.
First, the Chenettes did not allege facts sufficient to establish that the ditch is a clear and well-defined line. Lamm, 72 Wn.2d at 593. In Merriman, our Supreme Court held that markers overgrown with blackberry bushes, weeds, and ivy did not constitute a clear and well-defined line. Merriman, 168 Wn.2d at 631-32. Similarly, in Scott v. Slater, our Supreme Court held that a row of pear trees of varying shapes and sizes, which did not terminate at a well-defined point, did not constitute a clear and well-defined line. Scott v. Slater, 42 Wn.2d 366, 368-69, 255 P.2d 377 (1953), overruled on other grounds by Chaplin, 100 Wn.2d at 862 n. 2. Here, the Chenettes' supporting affidavits and exhibits merely establish that the ditch is man-made and runs down the center of the wooded median between the two access roads. There is no evidence regarding the dimensions of the ditch, whether those dimensions are uniform or varied, whether the ditch is clearly visible or overgrown, or whether the ditch begins and ends at clearly defined points. Such facts are necessary for determining whether the ditch is a clear and well-defined line for boundary acquiescence purposes. See Merriman, 168 Wn.2d at 631-32; Scott, 42 Wn.2d at 368-69. As there is no evidence describing the dimensions or condition of the ditch, the evidence is insufficient for a court to determine as a matter of law whether the ditch is a clear and well-defined line.
Second, the Chenettes did not allege facts sufficient to establish that the adjoining property owners "by their acts, occupancy, and improvements," mutually recognized and acquiesced to the ditch as the true boundary line. Lamm, 72 Wn.2d at 593. In Lamm, our Supreme Court held that property owners demonstrated mutual recognition and acquiescence by clearing portions of their property up to the disputed boundary line, erecting a fence, planting berry bushes, mowing the grass, and occasionally using the strip adjacent to the disputed fence line as a roadway for deliveries. Lamm, 72 Wn.2d at 590. Similarly, in Mullally v. Parks, our Supreme Court held that property owners demonstrated mutual recognition and acquiescence by clearing property up to the disputed boundary line, planting ornamental trees, ferns, and flowers, building a fence, and using the disputed strip as a play area for their children. Mullally v. Parks, 29 Wn.2d 899, 902-03, 908, 190 P.2d 107 (1948). In contrast, in Waldorf v. Cole, our Supreme Court held that there was "a complete lack of proof" of mutual recognition and acquiescence where the disputed area "was apparently not used and was essentially in its original condition," and the only improvement in the disputed area was a "rockery" built by one of the adjoining property owners against a dirt bank. Waldorf v. Cole, 61 Wn.2d 251, 255-56, 377 P.2d 862 (1963).
The evidence of occupation and improvements here is more similar to Waldorf than to Lamm or Mullally. The adjoining property owners apparently did not use the wooded median except to clear brush or maintain the ditch "from time to time," the area was essentially left in its original condition, and the only improvement in the area was the drainage ditch. CP at 61, 66. Such evidence is insufficient for a court to determine as a matter of law that the property owners demonstrated mutual recognition of and acquiescence to the ditch as the true boundary line. Lamm, 72 Wn.2d at 593; Waldorf, 61 Wn.2d at 255-56.
C. Sufficiency of the Evidence
When the moving party does not sustain its initial burden on summary judgment, it is appropriate for the trial court to deny summary judgment even if the nonmoving party failed to submit affidavits or other evidence opposing the motion. Hash, 110 Wn.2d at 915. But the Dicks contend that the trial court erred by simply denying the Chenettes' motion, arguing that the trial court should have granted summary judgment in their favor when the Chenettes failed to submit sufficient evidence to support their boundary acquiescence claim.
A party may move for summary judgment on the grounds that the nonmoving party failed to present sufficient evidence to support its claim. Pac. Nw. Shooting Park Ass'n v. City of Sequim, 158 Wn.2d 342, 350, 144 P.3d 276 (2006). To support such a claim, the moving party must "`identify those portions of the record, together with the affidavits, if any, which . . . demonstrate the absence of a genuine issue of material fact.'" Pac. Nw. Shooting Park, 158 Wn.2d at 350-51 (quoting Guile v. Ballard Cmty. Hosp., 70 Wn. App. 18, 22, 851 P.2d 689 (1993)). Here, the Dicks did not move for summary judgment on the grounds that the Chenettes failed to present sufficient evidence to support their boundary acquiescence claim; they moved for summary judgment on the grounds that the ditch is an insufficient boundary line because it is merely a natural land feature. As discussed above, the trial court appropriately denied their motion on that basis because they did not submit any affidavits supporting their argument. Michael, 165 Wn.2d at 601-02; Ranger Ins., 164 Wn.2d at 552.
The Dicks opposed the Chenettes' motion for summary judgment on the grounds that the Chenettes' evidence was insufficient, but they did not actually move for summary judgment on this basis. It is the moving party's responsibility to raise in its summary judgment motion all of the issues on which it believes it is entitled to summary judgment. White v. Kent Med. Ctr., Inc., 61 Wn. App. 163, 168, 810 P.2d 4 (1991); see also R. D. Merrill Co. v. Pollution Control Hearings Bd., 137 Wn.2d 118, 147 n. 10, 969 P.2d 458 (1999). "Allowing the moving party to raise new issues in its rebuttal materials is improper because the nonmoving party has no opportunity to respond." White, 61 Wn. App. at 168. Because the Dicks did not properly move for summary judgment on this basis, and the Chenettes did not have a proper opportunity to respond and present additional evidence, if such evidence exists, we decline to reverse the trial court's ruling on this basis. If the Chenettes fail to produce additional evidence supporting their claim at trial, the Dicks may move for judgment as a matter of law at that time.
IV. Deadman's Statute
Finally, both parties assign error to the trial court's ruling restricting Francis Chenette's testimony under the deadman's statute, RCW 5.60.030. Generally, a person may not be excluded from testifying as a witness based on his or her interest in the action, although such interest may be used to impeach his or her credibility. RCW 5.60.030. The exception to this general rule, known as the deadman's statute, provides that a "party in interest" claiming a right or title by, through, or from "any deceased person" may not testify to "statement[s]" or "transaction[s]" with the decedent. RCW 5.60.030. The purpose of this exception is to "prevent interested parties from giving self-serving testimony about conversations or transactions with the deceased." In re Estate of Miller, 134 Wn. App. 885, 890, 143 P.3d 315 (2006).
The Chenettes are a "party in interest" claiming title to the disputed strip of property under the doctrine of boundary acquiescence. They seek to establish the agreed-upon boundary line by testifying to "transactions" with members of Playhaven, Inc., a Washington corporation. CP at 59. But the deadman's statute does not apply in cases where the "decedent" is not a natural person. See Thor v. McDearmid, 63 Wn. App. 193, 200, 817 P.2d 1380 (1991) (citing N. Bank Trust Co. v. Harmon, 126 Wash. 25, 217 P. 8 (1923); Beaston v. Portland Trust Sav. Bank, 89 Wash. 627, 155 P. 162 (1916)). In Beaston, our Supreme Court explained:
A "transaction" is broadly defined under the deadman's statute as "`the doing or performing of some business between parties, or the management of any affair.'" Estate of Lennon, 108 Wn. App. 167, 174, 29 P.3d 1258 (2001) (quoting Bentzen v. Demmons, 68 Wn. App. 339, 344, 842 P.2d 1015 (1993)).
Our statute, it will be observed, applies, in its terms, only in the case of the death of a natural person who is a principal in the contract. It makes no reference to corporations, or to agents of corporations, or even to agents of deceased natural persons, and to read into it this further exception would be, we believe, an unwarranted extension of its terms.
Beaston, 89 Wash. at 631; see also N. Bank, 126 Wash. at 27 (quoting and affirming Beaston, 89 Wash. at 631). Our Supreme Court has never overruled Beaston, and this interpretation is consistent with the principle that exceptions to general statutory provisions should be narrowly construed. See City of Union Gap v. Dep't of Ecology, 148 Wn. App. 519, 527, 195 P.3d 580 (2008).
Finally, as a practical matter, the deadman's statute only bars testimony by a "party in interest." RCW 5.60.030. A "party in interest" is "one who stands to gain or lose in the action in question." Estate of Lennon, 108 Wn. App. 167, 174, 29 P.3d 1258 (2001). Ron Aspass also testified to his recollection of Playhaven's use of the property. Aspass is not a "party in interest" in this case. Lennon, 108 Wn. App. at 174. Thus, even if the deadman's statute precluded some or all of Francis Chenette's testimony, the Chenettes would still be able to rely on Aspass's testimony and the disputed evidence would still be in the record.
In sum, we reverse the trial court's ruling that the Dicks' damages are limited to stumpage value. We also reverse the trial court's order in limine restricting portions of Francis Chenette's testimony. We affirm the trial court's denial of summary judgment on whether the drainage ditch is a boundary line by mutual recognition and acquiescence.
A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record pursuant to RCW 2.06.040, it is so ordered.
WORSWICK, A.C.J. and TAYLOR, J., concur.