Chesser by Hadley v. Hathaway

• Decision Date: 16 December 1993
• Docket Number: No. 21609,21609
• Citation: 439 S.E.2d 459,190 W.Va. 594
• Parties: Lucille C. CHESSER by Peggy C. HADLEY, Her Attorney-In-Fact, and Byron Zirkle, Plaintiffs Below, Appellants, v. Timothy HATHAWAY and Kingsville Wood Products, Inc., A Corporation, Defendants Below, Appellees.
• Court: West Virginia Supreme Court

Page 459

439 S.E.2d 459

190 W.Va. 594

Lucille C. CHESSER by Peggy C. HADLEY, Her Attorney-In-Fact and Byron Zirkle, Plaintiffs Below, Appellants, v. Timothy HATHAWAY and Kingsville Wood Products, Inc., A Corporation, Defendants Below, Appellees.

No. 21609.

Supreme Court of Appeals of West Virginia.

Submitted Sept. 28, 1993.

Decided Dec. 16, 1993.

Syllabus by the Court

1. " 'Where the language of a statute is plain and unambiguous, there is no basis for application of rules of statutory construction; but courts must apply the statute according to the legislative intent plainly expressed therein.' Syllabus, Point 1, Dunlap v. State Compensation Director, 149 W.Va. 266 ." Syl. pt. 1, Farmers & Merchants Bank of Keyser v. Haden, 154 W.Va. 292, 175 S.E.2d 167 (1970).

2. " ' "In determining whether there is sufficient evidence to support a jury verdict the court should: (1) consider the evidence most favorable to the prevailing party; (2) assume that all conflicts in the evidence were resolved by the jury in favor of the prevailing party; (3) assume as proved all facts which the prevailing party's evidence tends to prove; and (4) give to the prevailing party the benefit of all favorable inferences which reasonably may be drawn from the facts proved." Syllabus Point 5, Orr v. Crowder, 173 W.Va. 335, 315 S.E.2d 593 (1984).' Syl. pt. 1, Pinnacle Mining v. Duncan Aircraft Sales, 182 W.Va. 307, 387 S.E.2d 542 (1989)." Syl. pt. 4, Pote v. Jarrell, 186 W.Va. 369, 412 S.E.2d 770 (1991).

3. " 'Punitive or exemplary damages are such as, in a proper case, a jury may allow against the defendant by way of punishment for wilfulness, wantonness, malice, or other like aggravation of his wrong to the plaintiff, over and above full compensation for all injuries directly or indirectly resulting from such wrong.' Syllabus Point 1, O'Brien v. Snodgrass, 123 W.Va. 483, 16 S.E.2d 621 (1941)." Syl. pt. 4, Harless v. First Nat'l Bank in Fairmont, 169 W.Va. 673, 289 S.E.2d 692 (1982).

James C. West, Jr., West & Jones, Clarksburg, for appellants.

James A. McKowen, Hunt, Lees, Farrell & Kessler, Charleston, for appellees.

PER CURIAM:

This case is before this Court upon an appeal from the September 23, 1992, order of the Circuit Court of Barbour County, West Virginia. In that order the circuit court denied the appellants' motion to set aside the verdict and judgment entered thereon. The appellants are Lucille C. Chesser by Peggy C. Hadley, her attorney-in-fact and Byron Zirkle. The jury awarded the appellants $19,009.96 in damages that resulted from the appellees' negligent trespass onto the appellants' property and the subsequent damaging, destroying and cutting of timber upon the appellants' land. The appellees are Timothy Hathaway and Kingsville Wood Products, Inc., a corporation. We have before us the petition for appeal, all matters of record and the briefs of counsel. For the reasons stated below, the judgment of the circuit court is affirmed, in part, reversed, in part, and remanded.

I

The land involved in this timber trespass action is known as the W.T. George property, which consists of 397 acres. The property is located in Barbour County, West Virginia. The W.T. George property involves three adjoining tracts of land, the Dayton tract, the Sipe tract and the Gall tract. The Dayton and Sipe tracts are owned by the W.T. George heirs (hereinafter "the heirs") and John Mosesso. With respect to the Gall tract, one-fourth of it is owned by the heirs and, the remaining three-fourths is owned by the plaintiffs below and the appellants herein, with Lucille Chesser owning one-half interest and Byron Zirkle owning one-quarter interest.

In the spring of 1990, the defendants below and the appellees herein entered into negotiations about timbering the W.T. George property. Mary Kelley, agent for the appellants, conducted the negotiations with the appellee, Timothy Hathaway. According to Ms. Kelley, she told Mr. Hathaway that the heirs were only interested in selling timber rights on the Dayton and Sipe tracts because the heirs only owned one-fourth interest in the Gall tract.

Prior to timbering, Mr. Hathaway went to the assessor's office to look at the relevant tax maps and cards. Mr. Hathaway testified that according to this information, it appeared as though the Dayton, Sipe and Gall tracts were not separate tracts but rather one tract of land. Following his completion of this research, Gerald Fogg, who initially represented the heirs, gave Mr. Hathaway a list of all the heirs. Mr. Hathaway testified that at this time Mr. Fogg did not indicate that anyone, besides the heirs, had an interest in the W.T. George property. Furthermore, Mr. Hathaway testified that in May of 1990, he signed separate timber agreements with each of the heirs and there was nothing within these contracts that indicated that someone other than the heirs owned an interest in the property.

John Kefover, one of the heirs, and Joan Brown, Mr. Kefover's friend, met with Mr. Hathaway and Mr. Fogg. John Kefover and Joan Brown had lived on the W.T. George property for 20 years. Mr. Hathaway testified that prior to the commencement of the timbering, he walked the area to be timbered with Mr. Kefover and Ms. Brown to make sure he had marked the boundaries correctly; and, during this inspection the trio went through the area that Mr. Hathaway later realized was the Gall tract.

However, Mr. Fogg testified and inferred that Mr. Hathaway was given notice of the fact that the heirs owned an undivided one-fourth interest in the Gall tract when he went to check the tax map cards, because the two deeds referred to on the tax cards recite the heirs' interest in the Gall tract.

Upon arriving at the property, the first thing Mr. Hathaway did was create a road for ingress and egress through the property. The crew then began timbering the property. At one point when the crew was timbering the Gall tract, Ms. Brown came to the job site and informed the crew that they were on the Gall tract and should not be there. Mr. Hathaway testified that this was the first indication to him that the heirs were not the sole owners of the Gall tract. Shortly thereafter, Peggy Hadley, Lucille Chesser's daughter, contacted Mr. Hathaway expressing concern that logging was being done on their land. The appellees continued to timber the property until they were served with an injunction and forced to stop in February of 1991. The appellees had cut down 922 trees from the Gall tract.

On at least two occasions, in the spring of 1991, the appellees offered to remove the timber that had been cut down, place it in a saw mill and have the money put in an escrow account. In December of 1991, the appellants informed the appellees that it was their desire for the timber to be removed. However, as Mr. Hathaway testified, at this point he did not believe the timber had any redeemable value due to the passage of time. He further testified that he was unable to remove the timber because he was not afforded enough time.

The jury heard the case on June 25, 1992, and June 27, 1992, and at the conclusion of all the evidence the trial court directed a verdict in favor of the appellants and against the appellees for the value of the timber which had been cut, with such value to be determined by the jury. The trial court instructed the jury that pursuant to W.Va.Code, 61-3-48a [1983], treble damages could be recovered only if the jury found that the appellees' act of entering upon the land and cutting timber was done with willful, wanton or malicious intent. Punitive damages were not considered because the trial court refused the appellants' instruction on punitive damages. In addition to the verdict form requiring the jury to fix the stumpage value of the Gall tract timber, the verdict form also contained a special interrogatory asking the jury: "Did the defendants, Timothy Hathaway and Kingsville Wood Products, Inc. know that the W.T. George heirs did not own 100% of the Gall Tract at the time they entered upon and cut timber on the Gall Tract?"

Ultimately, the jury found the stumpage value of the timber from the Gall tract to be $19,009.69; however, they responded to the special interrogatory by answering in the negative.

On September 23, 1992, the trial court denied the appellants' motion for a new trial. It is from the trial court's order of September 23, 1992, that the appellants appeal to this Court.

II

The appellants raise three assignments of error on appeal: (1) the trial court erred in refusing to treble the damages in accordance with W.Va.Code, 61-3-48a [1983]; (2) the trial court erred in refusing to set aside the verdict and grant a new trial on the grounds that the jury's answer to the special interrogatory was contrary to the weight of the uncontroverted evidence; and, (3) the trial court erred in refusing to give appellants' proffered instruction number 3 on punitive damages. Furthermore, the appellees raise, as cross-assignments of error, that the trial court erred in refusing to allow the appellees to present evidence concerning the appellants' failure to mitigate damages; the trial court erred in refusing to give appellees' instruction number 7 on mitigation of damages; and finally, the trial court erred in denying appellees' motion to set aside the verdict and judgment, in part, and to grant a new trial in part.

The appellants' first contention is that the trial court erred in refusing to treble the damages in accordance with W.Va.Code, 61-3-48a [1983], which provides:

Any person who enters upon the land or premises of another without written permission from the owner of the land or premises in order to cut, damage or carry away or cause to be cut, damaged or carried away, any timber, trees, logs, posts, fruit, nuts, growing plant or product of any growing plant, shall be liable to the owner in the amount of three times the value of the timber, trees, growing plants or products...