Birchler v. Castello Land Co., Inc., 64548-5

• Decision Date: 21 August 1997
• Docket Number: No. 64548-5,64548-5
• Court: Washington Supreme Court
• Parties: Martin BIRCHLER, a single man; and Judith Wilson, a single woman; and Dean B. Lang and Darlene Lang, husband and wife, and the marital community composed thereof, Respondents, v. CASTELLO LAND COMPANY, INC., a Washington corporation; and J.R. Hayes & Sons, Inc., a Washington corporation, Petitioners.

Page 106

133 Wn.2d 106

942 P.2d 968

Martin BIRCHLER, a single man; and Judith Wilson, a single woman; and Dean B. Lang and Darlene Lang, husband and wife, and the marital community composed thereof, Respondents, v. CASTELLO LAND COMPANY, INC., a Washington corporation; and J.R. Hayes & Sons, Inc., a Washington corporation Petitioners.

No. 64548-5.

Supreme Court of Washington En Banc.

Aug. 21, 1997.

As Amended Sept. 17, 1997.

Karr, Tuttle & Campbell, Steven D. Robinson, Seattle, for Petitioner

James Austin Doros, Seattle, for Respondent.

Nicholas P. Gellert, Seattle, Amicus Curiae on behalf of Puget Sound Energy.

TALMADGE, Justice.

Castello Land Company (Castello) and J.R. Hayes & Sons, Inc. (Hayes), destroyed the trees and vegetation of various homeowners, and were found liable by the jury at trial for damages, which were trebled by the trial court pursuant to RCW 64.12.030. The jury also awarded emotional distress damages of $2,000 to each of the homeowners. Castello and Hayes now contend emotional distress damages cannot be recovered in a statutory action for injury to trees and shrubs because the plaintiffs must elect either statutory or common law remedies. We hold emotional distress damages, if proved, may be recovered in an action under RCW 64.12.030, and no election of remedies is necessary. We affirm the judgment on the verdict of the jury.

ISSUE

Are emotional distress damages recoverable in a timber trespass action under RCW 64.12.030?

FACTS

During the late summer of 1990, Castello hired Hayes to grade and fill Castello's undeveloped ravine, which abutted property belonging to the respondents, Birchler, Lang, and Wilson (the homeowners). Despite blueprints showing the proper boundaries of the respective properties, Hayes' personnel at the jobsite intentionally encroached on Wilson's property during the grading and filling operation, resulting in the removal of vegetation, destruction of The homeowners sued Castello and Hayes for violation of RCW 64.12.030, common law trespass, and violation of the Consumer Protection Act, RCW 19.86. The homeowners sought general damages in tort, including emotional distress damages, and did not allege a distinct claim for emotional distress. The trial court dismissed the RCW 19.86 claims on summary judgment and the homeowners did not pursue their common law trespass claims. Neither of these claims is at issue in this appeal. The homeowners' sole theory for recovery at trial was RCW 64.12.030. ¹

her fence, and the placement and grading of fill. To make the grading consistent, Hayes later encroached on the properties of Birchler and the Langs to a similar extent.

Castello and Hayes moved at the beginning of the trial to strike the homeowners' request for emotional distress damages on the ground that such damages are not recoverable in a statutory timber trespass action. The trial court denied the motion. The case went to trial in January 1995. Employing special verdict forms for each homeowner, the jury found Birchler, Wilson, and the Langs had suffered $17,000, $17,000, and $13,250 in damages, respectively. Moreover, in each case, the jury concluded Castello and Hayes had failed to prove the trespass was not casual or involuntary; the jury also found that they willfully or wantonly removed the homeowners' trees and shrubbery, a prerequisite for the trebling of Castello and Hayes appealed and the Court of Appeals affirmed the judgment. Birchler v. Castello Land Co., Inc., 81 Wash.App. 603, 915 P.2d 564 (1996). Castello and Hayes sought review in this Court, which we granted, solely on the availability of emotional distress damages in a statutory timber trespass action.

                damages. 2  Thus, in each case, the judgment on the verdict was for three times the amount of damages the jury found, a total of $141,750.  In a segregated portion of the verdict form, the jury also found Castello and Hayes had caused the homeowners emotional distress, and awarded each respondent $2,000 damages.  The trial court did not treble the emotional distress damages. 3
                

ANALYSIS

RCW 64.12.030 creates a punitive damages remedy, trebling damages for injury to, or removal of, trees, timber, or shrubs, when a person trespasses on the land of another. This treble damage remedy is available when the trespass is "willful," because if the trespass is "casual or involuntary" or based on a mistaken belief of ownership of the land, treble damages are not available. RCW 64.12.040. As befits a penal statute, our decisions have interpreted this punitive damages provision narrowly. Grays Harbor County v. Bay City Lumber Co., 47 Wash.2d RCW 64.12.030 does not precisely articulate the damages that are subject to trebling, indicating only that punitive damages are available "[w]henever any person shall cut down, girdle or otherwise injure, or carry off any tree, timber or shrub ..." Our cases have generally confined the treble damages remedy to injury to, or removal of, vegetation, although the measure of damages has varied by the type of vegetation affected. In Sherrell v. Selfors, 73 Wash.App. 596, 602, 871 P.2d 168, review denied, 125 Wash.2d 1002, 886 P.2d 1134 (1994), the Court of Appeals undertook a compilation of the cases addressing the measure of damages in RCW 64.12.030 cases:

879, 886, 289 P.2d 975 (1955); Bailey v. Hayden, 65 Wash. 57, 61, 117 P. 720 (1911). At the same time, our cases have been cognizant of the purpose of RCW 64.12.040: to punish trespassers, to prevent careless or intentional removal of trees and vegetation from property, and to roughly compensate landowners for their losses. Pearce v. G.R. Kirk Co., 92 Wash.2d 869, 602 P.2d 357 (1979); Guay v. Washington Natural Gas Co., 62 Wash.2d 473, 383 P.2d 296 (1963).

RCW 64.12.030 applies to any "tree", "timber" and "shrub". When the damage is to "timber", the landowner is generally compensated based on the "stumpage value" of the severed trees, together with other damages that are a normal consequence of the logging operation. See, e.g., Henriksen v. Lyons, 33 Wash.App. 123, 127, 652 P.2d 18 (1982), review denied, 99 Wash.2d 1001 (1983); Bremerton Central Lions Club, Inc., [v. Manke Lumber Co., 25 Wash.App. 1] at 7[, 604 P.2d 1325 (1979)]. When the damage is to a "productive tree", its production value rather than its stumpage value is the measure of damages. See, e.g., Sparks, [v. Douglas County, 39 Wash.App. 714] at 720[, 695 P.2d 588 (1985)] (measure is lost production value of fruit trees while replacement trees are maturing less production costs). When the damage is to Christmas trees intended to be sold at market, lost profits, not stumpage value, [are] an appropriate measure of damages. Pearce v. G.R. Kirk Co., 92 Wash.2d 869, 873-74, 602 P.2d 357 (1979).

The Sherrell court held the measure of damages in a case

                involving injury to or destruction of residential/ornamental trees or shrubs, such as the present case, was the restoration or replacement cost for the vegetation.  Id. at 603, 871 P.2d 168.   See also Tatum v. R & R Cable, Inc., 30 Wash.App. 580, 636 P.2d 508 (1981), review denied, 97 Wash.2d 1007 (1982).  None of these cases, however, specifically addressed the issue of whether emotional distress damages are recoverable under RCW 64.12.030
                

A. Election of Remedies

Castello and Hayes rely primarily on the doctrine of election of remedies for their view that emotional distress damages may not be recovered under RCW 64.12.030:

Those who bring actions to recover damages for the loss of, or injury to, trees, plants and shrubs must make an election to pursue either common law remedies or the statutory remedy created by RCW 64.12.030.... When the statutory remedy is chosen, common law remedies and damages are pre-empted.

Pet. for Review at 7. Castello and Hayes do not cite any election of remedies cases to support this assertion; nor do the election of remedies cases help them.

The purpose of the doctrine of election of remedies is to prevent a double redress for a single wrong. Lange v. Town of Woodway, 79 Wash.2d 45, 49, 483 P.2d 116 (1971); Barber v. Rochester, 52 Wash.2d 691, 695, 328 P.2d 711 (1958). "[T]hree elements must be present before a party will be held bound by an election of remedies. Two or more remedies must exist at the time of the election; the remedies must be repugnant and inconsistent with each other; and the party to be bound must have chosen one of them." Lange, 79 Wash.2d at 49, 483 P.2d 116. See also Watkins v. Siler Logging Co., 9 Wash.2d 703, 725, 116 P.2d 315 (1941).

A claim for damages from emotional distress is not an alternate or cumulative remedy for timber trespass that one may elect in lieu of a common law remedy or the Numerous cases indicate that a party can recover treble damages under RCW 64.12.030, as well as other, provable, nonduplicative damages. For example, in Henriksen v. Lyons, 33 Wash.App. 123, 652 P.2d 18 (1982), review denied, 99 Wash.2d 1001 (1983), upon which Castello and Hayes rely, Henriksen owned land in Skamania County. Lyons committed timber trespass on Henriksen's land, and Henriksen obtained a verdict at a bench trial for the trebled value of the trees cut under RCW 64.12.030, as well as a $3,000 judgment for diminution of the value of her land. Id. at 124, 652 P.2d 18. The Court of Appeals affirmed the award of damages for timber trespass, but reversed the $3,000 judgment for diminution in the value of Henriksen's land, stating:

statutory remedy, but merely another item of damages for a wrong committed as a result of the timber trespass. Nor are emotional distress damages "repugnant and inconsistent" with damages caused by timber trespass. The facts of the present case do not present an election of remedies issue.

In this state, the landowner suffering a timber trespass may elect to pursue either common law remedies or statutory remedies. At common law, damages are measured by the difference in the value of the land before and after the...