Allyn v. Boe
| Decision Date | 05 September 1997 |
| Docket Number | No. 19304-3-II,19304-3-II |
| Court | Washington Court of Appeals |
| Parties | Richard J. ALLYN and Winifred Allyn, Appellants/Cross-respondents, v. Gordon BOE and Beverlee Boe, husband and wife; Myron Struck and Karin Struck, husband and wife; Chris Struck and Jane Doe Struck, husband and wife; and Gordon Boe Construction, Respondents/Cross-appellants. |
John Emmett Cushman, Cushman Raymond & Middleton, P.s., Olympia, for Respondents.
In this timber trespass action, the jury awarded damages for harvested trees in an amount more than double the value of the underlying property. The trial court ordered a new trial because of: (1) juror misconduct and (2) the court's failure to instruct the jury that damages could not exceed the underlying value of the property. The Allyns appeal. The defendants cross appeal, contending that, because the discovery rule does not apply to timber trespass actions, the action is barred by the statute of limitations. Because a juror who conceals bias during voir dire commits misconduct, we hold that the trial court did not abuse its discretion in ordering a new trial on this ground. Furthermore, although we decline to adopt a rule that damages in a timber trespass cannot exceed the value of the underlying property, we hold that under the formula presented to the jury, the damages for lost trees must be reasonably related to the value of the land.
Because the trial court's ruling that damages cannot exceed the value of the land necessarily implies a finding that the damages awarded did not bear such a reasonable relationship, we find no abuse of discretion on this ground either. Finally, we hold that the discovery rule applies to timber trespass actions and, therefore, the case was timely filed.
The Allyn family has owned 10 acres of wooded, undeveloped property in Thurston County for more than 85 years, purposely leaving the land undeveloped. Richard and Winifred Allyn, the current owners, had planned to eventually build a retirement cabin on a small portion of the land. They currently reside in Bellevue, Washington.
Gordon Boe and Myron Struck (hereinafter "Boe") began logging their adjoining land in July 1987. While logging, they cut down 283 trees from about two acres of the Allyns' land. Boe completed the logging by September 18, 1987.
Mr. Allyn visited his property on September 12, 1989, and saw that two acres had been logged. He was very upset and reported the theft to the Sheriff's Office. Mr. Allyn suspected Boe because he saw logs on Boe's land and a neighbor told him that Boe had logged his own land in the summer of 1987. But when questioned by the police, Boe denied cutting the trees even though he knew from a survey in 1988 that he had cut some of the Allyns' trees.
Mr. Allyn then hired an attorney, a private investigator, a surveyor, and a timber expert to find out who had cut down his trees. In early October 1990, the timber expert matched a cut tree on Boe's land to a stump on the Allyns' land. Mr. Allyn then sued Boe on October 10, 1990, alleging timber trespass in violation of RCW 64.12.030, and seeking damages for the trespass and for emotional distress.
The defendants sought a dismissal, arguing that the Boe moved to exclude all evidence that the value of the cut timber exceeded the fair market value of the entire 10 acres of land, arguing that, as a matter of law, the damages in a timber trespass case can not exceed the fair market value of the underlying parcel of land. The trial court denied the motion.
three-year statute of limitations had run. The trial court denied the motion, finding that, under the discovery rule, the statute of limitations had not begun to run until the Allyns learned of all the elements of the claim, including who had cut the trees. The court then directed a verdict on liability in favor of the Allyns.
Molly Beck, an arborist expert for the Allyns, testified on the value of the cut trees. In evaluating the loss, she rejected the cost of cure and replacement value methods because she believed these would yield an exorbitant value. Beck estimated the cost of replanting the trees, some more than two feet in diameter, in excess of $400,000. Beck also rejected the stumpage value method, used when evaluating timber as a commodity, because the Allyns were not growing the trees for the timber market.
Instead, Beck used the basic formula method. Under this method, the arborist determines the cost per unit of trunk cross-sectional area to purchase and plant an available replacement tree. Here, Beck used $27 per square inch. The total square inches of the cut tree's trunk can then be determined and the value of the tree calculated. Beck gave the example of a 21-inch diameter Douglas fir with a total calculated value of $9,342. This total is then reduced by factors for the location, condition, and species of the tree, resulting in a value of $420 for the example tree. Beck calculated the total value of all the trees cut to be $84,597. She determined this figure without regard to the appraised market value of the Allyns' land.
Beck conceded that the arborist's manual she used in her calculations stated that "[t]he appraised value of a tree should usually be reasonable in relation to the value of the property in which it is situated." The manual also Struck testified that the logs were sold for $27,269. According to Struck, about two-thirds of the trees sold came from the Allyns' two acres, while the other third came from the defendants' 15 acres. Donald Taylor, a real estate appraiser, testified that he appraised the Allyns' land with the trees still standing at $35,000. Another appraiser had valued the land at $27,500. A forestry management expert testified that the stumpage value of the trees was $16,355.
suggested that such value could range from seven to fifteen percent of the total value of the land. But Beck disagreed and testified that a tree's value can exceed the value of the property on which it stands.
The jury awarded the Allyns $75,000 for the loss of trees and $25,000 for emotional distress. The jury also found that Boe had willfully trespassed on the Allyns' land. 1 Boe moved for a new trial. In support of the motion, Boe obtained affidavits from several jurors alleging that the following juror misconduct had occurred during deliberations: (1) one juror, a realtor, said that she could get $125,000 for the Allyns' land, that she knew Taylor, the defendant's real estate expert, and that he would testify to anything; (2) another juror, a retired logger, said that timber trespass damages had to be tripled and the jury then tripled its damage award. During voir dire, the realtor-juror had said that she knew Taylor, but when asked if this would prevent her from being impartial, she said nothing.
Boe also renewed his argument that the court should have instructed the jury that timber trespass damages could not exceed the value of the underlying property. Finding the result an "injustice," the trial judge ordered a new trial, concluding that he should have limited damages to no more than the fair market value of the property. The judge also ruled that the realtor juror's statements amounted to misconduct and formed an alternative basis for the new trial. The trial judge, however, ruled
that the statements of the retired logger juror inhered in the verdict and were not juror misconduct. The Allyns appealed and Boe cross-appealed.
The granting of a new trial motion is a matter within the discretion of the trial court, and its ruling will not be disturbed absent a showing of clear abuse of that discretion. Kramer v. J.I. Case Mfg. Co., 62 Wash.App. 544, 561, 815 P.2d 798 (1991). When such an order, however, is predicated upon rulings of law, no element of discretion is present. Robinson v. Safeway Stores, Inc., 113 Wash.2d 154, 158, 776 P.2d 676 (1989).
A juror's misrepresentation or failure to speak when called upon during voir dire regarding a material fact can amount to juror misconduct. Robinson, 113 Wash.2d at 158, 776 P.2d 676.
[W]hen there is strong evidence to the effect that a juror was biased when he entered upon the case and swore falsely on voir dire, concealing his bias, the trial court will not abuse its discretion in granting a motion for new trial. The misconduct consists of his deception of the court and counsel as to his incompetence as an impartial juror.
Robinson, 113 Wash.2d at 158, 776 P.2d 676 (quoting Nelson v. Placanica, 33 Wash.2d 523, 528-29, 206 P.2d 296 (1949)) (emphasis present). Furthermore, a juror who brings to the jury deliberations information outside the record commits misconduct. Richards v. Overlake Hosp. Med. Ctr., 59 Wash.App. 266, 270, 796 P.2d 737 (1990); see also Halverson v. Anderson, 82 Wash.2d 746, 752, 513 P.2d 827 (1973).
The court must make an objective inquiry into whether the extraneous evidence could have affected the jury's verdict, not a subjective inquiry into the actual effect. Richards, 59 Wash.App. at 273, 796 P.2d 737. Whether such misconduct occurred and whether it was prejudicial are matters within the sound discretion of the trial court, who saw both the witnesses and the trial proceedings, and had in mind the evidence. Richards, 59 Wash.App. at 271-72, 796 P.2d 737. Any doubt as to whether the misconduct affected the verdict must be resolved against the verdict. Richards, 59 Wash.App. at 273, 796 P.2d 737.
In Robinson, the court held that a juror's failure to disclose his bias against California residents, and his perception of their role in the legal process, constituted juror misconduct because the plaintiff was from California. Robinson, 113 Wash.2d at 158-59, 776 P.2d 676. In Allison v. Department of Labor & Indus., 66 Wash.2d...
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