Epsom v. Crandall, 18-290

• Decision Date: 04 October 2019
• Docket Number: No. 18-290,18-290
• Parties: Paul EPSOM and Kristine Kelley v. David S. CRANDALL and Mark Johnson
• Court: Vermont Supreme Court

220 A.3d 1247

Paul EPSOM and Kristine Kelley
v.
David S. CRANDALL and Mark Johnson

No. 18-290

Supreme Court of Vermont.

May Term, 2019
October 4, 2019

Kaveh S. Shahi of Cleary Shahi & Aicher, P.C., Rutland, for Plaintiffs-Appellants.

John D. Willey, Jr. of Boylan Associates, P.C., Springfield, for Defendant-Appellee Crandall.

Mark B. Heath and Evan J. O'Brien of Downs Rachlin Martin PLLC, Burlington, for Defendant-Appellee Johnson.

PRESENT: Reiber, C.J., Skoglund, Robinson, Eaton and Carroll, JJ.

CARROLL, J.

¶ 1. This is a timber trespass action brought by plaintiffs against a neighboring landowner and the logger who cut plaintiffs' trees. Plaintiffs appeal from a jury verdict in their favor, arguing that the damage award was inadequate. Plaintiffs also claim that the jury should have found

220 A.3d 1252

the neighbor liable for unlawful mischief and that the trial court erred in denying their claims for treble damages, additional costs, and prejudgment interest. We affirm.

¶ 2. The following evidence was presented at trial. Plaintiffs Paul Epsom and Kristine Kelly reside in Pennsylvania. Epsom is a certified arborist and owns a garden center. In 2008, plaintiffs purchased a forty-eight-acre lot in the town of Plymouth for $165,000. They built a house on the property to use as a second home with the intention of eventually retiring there. In 2011, they placed the property in a current-use plan. Epsom testified that they wanted to improve the forest and intended to develop some recreational trails.

¶ 3. Defendant David Crandall lives in Vermont and Florida. He owns a four-acre lot that abuts the north and west sides of plaintiffs' land.

¶ 4. In September 2014, Crandall listed his property for sale. He hired a logger, defendant Mark Johnson, to clear the lot to make it more attractive to potential purchasers. Crandall had never had logging done on any property he owned before this project. Neither Crandall nor Johnson was aware that the law at that time required Crandall to mark the area to be logged.¹

¶ 5. Prior to beginning work, Crandall and Johnson met at Crandall's property and walked the proposed logging area. The northern and southern boundaries of Crandall's property were well-marked. Crandall testified that he thought it would be simple for Johnson to find the eastern boundary line—i.e., the boundary between his land and plaintiffs' land—because his survey map depicted it as being 300 feet from the road. Crandall testified that he showed Johnson the survey map that day. He testified that he relied on Johnson's expertise as a logger to find the boundary.

¶ 6. Johnson denied that Crandall showed him the survey map on the day they met or told him the eastern boundary was 300 feet from the road. Johnson understood that he could cut down to a certain stream that ran through Crandall's property, and that the eastern boundary was beyond that stream. Johnson began logging soon after his meeting with Crandall because he had an opening in his schedule and there was plenty of work to be done on the area that Crandall had identified as his property.

¶ 7. As he worked, Johnson did not observe any signs of a boundary line near the eastern edge of Crandall's property. He observed that the forest near the eastern boundary consisted mainly of maple trees of average to lower quality, as well as beech trees that bore scabbing and were diseased. He also observed old skid trails from previous logging activities as well as old stumps and downed trees. Johnson testified that when he got close to where he understood the eastern boundary to be, he asked Crandall to send him the survey map. When Johnson received the map, he realized that he had overcut onto plaintiffs' property.

¶ 8. Johnson cut thirty-nine mature trees and nineteen saplings on plaintiffs'

220 A.3d 1253

land.² The mature trees consisted of seven ash, eight beech, nineteen maples, and five birch trees. Johnson sold two of the ash trees and seventeen of the maple trees to a sawmill for $734. Johnson also cut five to six cords of firewood, for which he received approximately $500 or $600.

¶ 9. After Johnson realized that he had cut plaintiffs' trees, he notified Crandall. He then called Epsom and apologized. Epsom and Johnson arranged to meet at plaintiffs' property in early October along with Epsom's forester. Johnson presented Epsom with a copy of the sawmill receipt and offered to pay Epsom the amount Johnson had received for the logs. Epsom declined. Johnson asked if there was anything else he could do, and Epsom asked him to clean up the overcut area, which Johnson did.

¶ 10. Plaintiffs subsequently filed separate actions against Crandall and Johnson. They sought damages against both defendants for timber trespass, common-law trespass, and unlawful mischief, and against defendant Crandall for unjust enrichment. Crandall and Johnson filed cross-claims for indemnification against each other. The actions were consolidated for a jury trial.

¶ 11. The trial took place over five days. The parties did not dispute that Johnson had cut plaintiffs' trees; the testimony focused mainly on the amount of damages. Plaintiffs' arborist expert, Cal Felicetti, estimated the replacement value of the cut trees using the trunk formula method for appraisal of trees in the Guide for Plant Appraisal, an industry treatise. Under this method, Felicetti took the cost of purchasing and planting a sapling species from a commercial nursery and used that to calculate the cost per square inch of diameter. He then multiplied that amount by the size of the trunk on the lost tree to obtain a theoretical replacement cost, which he reduced by factors such as species rating, condition, location, and cost. Using the trunk formula method, he estimated the replacement value for the trees cut on plaintiffs' land to be $189,200. His valuations of individual trees ranged from $352 for an eight-inch beech to $25,929 for a 32-inch sugar maple. Felicetti stated that he used the trunk formula method because of plaintiffs' stated emotional connection to the trees, but admitted his estimate of value was in "a gray zone, because the trees at the far end of the Epsom's property are probably only worth timber value."

¶ 12. Defendants presented a much lower estimate of damages. John Wiggin, defendants' timber evaluation expert, testified that he visited plaintiffs' property approximately one month after the trees were cut. Based on the stumps and the surrounding trees, he estimated that the cut trees were not particularly old or large except for some of the ash trees. He stated that most of the beech trees were of small diameter and were severely impacted by disease, making them suitable only for firewood. Based on his observations, he estimated the mill value of the cut trees to be $1553.

¶ 13. The jury found Johnson liable for timber trespass but concluded that Johnson acted through mistake of fact regarding the location of the boundary. It found that Crandall did not act through mistake of fact or have a good reason to believe the trees belonged to him, and was therefore

220 A.3d 1254

liable for the statutory penalty of $1000 for failure to mark the harvest unit. The jury also found both Johnson and Crandall liable for common-law trespass. It found that Crandall had to indemnify Johnson. It determined that plaintiffs' actual damages were $19,500. The jury found defendants not liable for unlawful mischief, unjust enrichment, or punitive damages. The court interpreted the timber trespass statute to allow only single damages against landowner Crandall and entered judgment accordingly.

¶ 14. Plaintiffs moved for the court to amend the judgment or grant a new trial, arguing that they were entitled to judgment in their favor on the unlawful mischief count and that the damages awarded by the jury were too low and not supported by the evidence. They also asked the court to reconsider its denial of treble damages and to award them prejudgment interest and additional costs. The court denied plaintiffs' motions. This appeal followed.

¶ 15. On appeal, plaintiffs raise five issues. First, they argue that the trial court erred by denying their motion for additur or a new trial because the jury's damage award of $19,500 was inadequate and not supported by the evidence. Second, plaintiffs claim the court erred by denying their motion for judgment as a matter of law or for a new trial against defendant Crandall on the unlawful mischief count. Finally, they argue that they were entitled to treble damages and additional costs under the timber trespass statute and prejudgment interest as of right. We address each argument in turn.

I. Motion for New Trial on Damages or Additur

¶ 16. Plaintiffs argue that the trial court should have granted their motion for a new trial or additur because the jury award was inadequate and unsupported by the evidence. The court rejected plaintiffs' motion on the ground that the jury could reasonably have concluded from the evidence presented that the damages should be determined by the cost of planting new trees alone at an estimated cost of $500 per tree, which corresponded to the approximate cost proposed by plaintiffs' expert to plant new...