Opinion
No. 36157-4-II.
December 2, 2008.
Appeal from a judgment of the Superior Court for Pacific County, No. 05-2-00068-8, Michael J. Sullivan, J., entered March 14, 2007.
Affirmed in part, reversed in part, and remanded by unpublished opinion per Houghton, J., concurred in by Armstrong and Hunt, JJ.
Ray Schiller appeals from a trial court's ruling awarding damages for his timber trespass. He argues that the trial court erred when it (1) applied RCW 4.24.630 (award for damage to land and property) instead of RCW 64.12.030 (treble damage award for timber trespass), (2) awarded duplicative damages, (3) awarded damages unsupported by the evidence, and (4) awarded attorney fees. We affirm in part, reverse in part, and remand.
FACTS
The trial court acted as fact finder.
Schiller owns a condominium in the Southwind complex in Pacific County. Structural Investments Planning IV, LLC, owns property west of Southwind. In the past, Schiller requested permission from the previous owner of Structural's property to enter onto the land and prune timber there. He had no such permission from Structural.
In early March 2004, Schiller trespassed onto Structural's property and cut a cluster of willow trees to improve his view of a pond and local fauna. Structural's agent verbally told Schiller to cease his pruning activities around the pond in March and later called the police. Structural declined to press any criminal charges.
Schiller admitted on direct examination that he cut the willow trees on Structural's property.
In January or February 2005, Schiller trespassed onto Structural's property a second time to prune six sitka spruce trees to improve his view of the Pacific Ocean. After this second trespass, Structural sued Schiller, alleging that he entered onto its property to cut and poison a number of trees.
The trial court heard testimony from Structural's expert, a wetland biologist, who described the damages and assessed repair and restoration costs. The trial court agreed that Schiller had trespassed on Structural's property and caused damage. Among other things, it found that after the pruning, Schiller's view of the ocean remains slight "under the best circumstances," nevertheless, his overall westerly view improved as a result and it awarded damages for various claims. Clerk's Papers at 177.
Applying RCW 4.24.630, the trial court awarded the following damages, some of which it trebled: (1) $6,000 ($2,000 trebled) for damage to the willow cluster, (2) $2,000 in mitigation damages for the willow, (3) $3,000 for unjust enrichment resulting from Schiller's improved view of the pond, (4) $2,000 for loss of pond habitat, (5) $5,400 ($1,800 trebled) for damage to the spruce trees, (6) $5,400 (eight trees at $300 each, plus $1,000 labor, and $2,000 monitoring costs) in mitigation damages for the spruce trees, (7) $14,000 for unjust enrichment ($2,000 per year multiplied by seven years — the length of time until the spruce trees grow back) resulting from Schiller's improved view of the ocean, (8) $30,953 in attorney fees, (9) $607.33 in costs, and (10) $3,717 for expert witness fees. The amount of damages is $37,800 in timber trespass damages, $30,953 in attorney fees, $607.33 in costs, and $3,717 in expert witness fees for a total of $73,077.33.
Schiller appeals.
ANALYSIS Damage Award
Schiller first contends that the trial court should not have applied RCW 4.24.630 because the statute does not allow for recovery when RCW 64.12.030 also applies. RCW 4.24.630 sets forth liability for damages to crops, minerals, real estate, and personal property. It provides:
(1) Every person who goes onto the land of another and who removes timber, crops, minerals, or other similar valuable property from the land, or wrongfully causes waste or injury to the land, or wrongfully injures personal property or improvements to real estate on the land, is liable to the injured party for treble the amount of the damages caused by the removal, waste, or injury. For purposes of this section, a person acts "wrongfully" if the person intentionally and unreasonably commits the act or acts while knowing, or having reason to know, that he or she lacks authorization to so act. Damages recoverable under this section include, but are not limited to, damages for the market value of the property removed or injured, and for injury to the land, including the costs of restoration. In addition, the person is liable for reimbursing the injured party for the party's reasonable costs, including but not limited to investigative costs and reasonable attorneys' fees and other litigation-related costs.
(2) This section does not apply in any case where liability for damages is provided under RCW 64.12.030 [relating to private land], 79.01.756 [recodified as 79.02.320], 79.01.760 [recodified as 79.02.300], 79.40.070 [recodified as 79.02.340] [relating to public lands].
Applying RCW 4.24.630(1), the trial court found that Schiller acted wrongfully within the meaning of the statute and awarded damages, costs, and attorney fees. Section (2) of the statute, however, specifically precludes the application of section (1) in any case where RCW 64.12.030 provides for damages. RCW 64.12.030 provides:
Whenever any person shall cut down, girdle or otherwise injure, or carry off any tree, timber or shrub on the land of another person, or on the street or highway in front of any person's house, village, town or city lot, or cultivated grounds, or on the commons or public grounds of any village, town or city, or on the street or highway in front thereof, without lawful authority, in an action by such person, village, town or city against the person committing such trespasses or any of them, if judgment be given for the plaintiff, it shall be given for treble the amount of damages claimed or assessed therefor, as the case may be.
We review the meaning of a statute de novo as a question of law. Okeson v. City of Seattle, 150 Wn.2d 540, 548-49, 78 P.3d 1279 (2003). Here, Schiller went onto Structural's land and damaged timber. According to the plain language of RCW 4.24.630(2), it does not apply here because RCW 64.12.030 applies. Thus, the trial court erred in applying RCW 4.24.630 when it should have applied RCW 64.12.030 in awarding damages, including treble damages. We next turn to the question of what the trial court could award.
As noted, RCW 4.24.630 also provides for damages to land and property, including timber removal. We do not address the possible interplays between RCW 4.24.630 and RCW 64.12.030 because none exist here.
Schiller contends that the trial court erred in entering an award for unjust enrichment and loss of habitat damages. Schiller also asserts that the trial court entered a duplicative award of actual and mitigation costs.
The trial court cited Birchler v. Castello Land Co., 133 Wn.2d 106, 942 P.2d 968 (1997), as a basis for its unjust enrichment damage award. Schiller claims the trial court misapplied Birchler. We agree.
The Birchler court addressed the issue of emotional distress damages in a timber trespass case. 133 Wn.2d 108. Reviewing other cases, the court explained that parties "can recover treble damages under RCW 64.12.030, as well as other, provable, nonduplicative damages." Birchler, 133 Wn.2d at 113. That is, the statute allows for additional, extraordinary losses that are not the normal consequence of a logging operation. Birchler, 133 Wn.2d at 113-14. Ultimately, the court held, "There is nothing in the history of the timber trespass statute to suggest it subsumes all other causes of action that may exist in conjunction with a timber trespass." Birchler, 133 Wn.2d at 117.
Although Birchler supports "provable, nonduplicative damages," it does not support an award of unjust enrichment where one party did not own what another took unjustly. 133 Wn.2d at 113; see Bailie Commc'ns, Ltd. v. Trend Bus. Sys., Inc., 61 Wn. App. 151, 60, 810 P.2d 12 (1991) (holding that "[u]njust enrichment occurs when one retains money or benefits which in justice and equity belong to another"). While the view that Schiller now enjoys is the result of his timber trespass, Structural never enjoyed a similar view before and thus never owned the view. Instead, the loss that Structural suffered was a result of Schiller's cutting down trees, and it is for the value of those trees that the trial court properly awarded Structural damages.
Furthermore, the trial court erred in awarding mitigation costs. These costs may be available under RCW 4.24.630, but they are not available under RCW 64.12.030, the applicable statute.
In summary, under RCW 64.12.030, the trial court could award treble damages for Schiller's cutting of the trees. But it erred in awarding damages for unjust enrichment, loss of pond habitat, and mitigation.
Expert Witness Testimony
Schiller also argues that the trial court should not have allowed Structural's wetland biologist to testify as an expert because he lacked qualifications and a foundation for his testimony. Thus, he asserts, insufficient credible evidence supports the trial court's award of damages.
We leave the question whether to allow expert testimony to the sound discretion of the trial court. Saldivar v. Momah, 145 Wn. App. 365, 397, 186 P.3d 1117 (2008). A trial court abuses its discretion when it bases its decision on untenable or unreasonable grounds. Qwest Corp. v. City of Bellevue, 161 Wn.2d 353, 369, 166 P.3d 667 (2007).
Here, the wetland biologist testified that he held graduate and undergraduate degrees in environmental science. He described his membership in relevant professional organizations and employment at a private company specializing in wetlands assessments. He also explained that he had previously testified about assessing tree damage and replacement costs. Exercising its broad discretion, the trial court properly allowed the expert to testify in support of Structural's damages claims and Schiller's argument fails.
Attorney Fees
Finally, Schiller argues that attorney fees cannot be awarded under RCW 64.12.030. Appellant's Br. at 12. In Washington, a court cannot award attorney fees absent a contract, statute, or recognized equity ground. JDFJ Corp. v. Int'l Raceway, Inc., 97 Wn. App. 1, 7-8, 970 P.2d 343 (1999). Because RCW 4.24.630 does not apply and RCW 64.12.030 does not provide for attorney fees and costs, the trial court erred in awarding attorney fees and litigation costs.
To summarize, applying the appropriate statute, the trial court could properly award Structural (1) $6,000 for damage to the willow cluster ($2,000 trebled) and (2) $5,400 for damage to the spruce trees ($1,800 trebled).
Affirmed in part, reversed in part, and remanded.
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.
ARMSTRONG, J. and HUNT, J., concur.