Gunn v. Riely

• Decision Date: 21 January 2015
• Docket Number: No. 45177–8–II.,45177–8–II.
• Citation: 344 P.3d 1225
• Court: Washington Court of Appeals
• Parties: Robert GUNN, a single man, Respondent, v. Terry L. RIELY and Petra E. Riely, husband and wife, and their marital community, and all Persons Claiming Any Legal or Equitable Right, Title, Estate, Lien, or Interest in the Property Described in the Complaint Adverse to Plaintiff's Title, or Any Cloud on Plaintiff's Title Thereto, Appellants.

344 P.3d 1225

Robert GUNN, a single man, Respondent,

v.Terry L. RIELY and Petra E. Riely, husband and wife, and their marital community, and all Persons Claiming Any Legal or Equitable Right, Title, Estate, Lien, or Interest in the Property Described in the Complaint Adverse to Plaintiff's Title, or Any Cloud on Plaintiff's Title Thereto, Appellants.

No. 45177–8–II.

Court of Appeals of Washington, Division 2.

Jan. 21, 2015.

Reversed and remanded. Curtis Gerard Johnson, Attorney at Law, Port Angeles, WA, for Appellant.

William Jeffrey Davis, Bell & Davis PLLC, Sequim, WA, for Respondent.

LEE, J.

¶ 1 Terry and Petra Riely (the Rielys) appeal the trial court's judgment awarding damages to Robert Gunn for timber trespass on Gunn's property. The Rielys argue that the trial court erred when it (1) applied RCW 4.24.630, the waste statute, instead of RCW 64.12.030, the timber trespass statute; (2) did not consider the Rielys' affirmative defense that Oasis Well Drilling (Oasis) was liable; and (3) did not consider whether the Rielys had an implied easement. Because the trial court incorrectly applied the waste statute, RCW 4.24.630, we reverse and remand for further proceedings.

FACTS

¶ 2 Gunn and the Rielys own adjacent property in the Storm King Ranch subdivision (Storm King) in Clallam County, Washington . Joel Sisson, one of the Storm King developers, purchased the Storm King land and subdivided it into eight parcels. Parcels 1, 2, and 3 share a common corner. Gunn owns parcel 1 and the Rielys own parcel 2. The owners of parcel 3 are not parties to this appeal.

¶ 3 Sponberg Lane runs west through Gunn's property. A grassy path (an old logging road) diverges from Sponberg Lane, and runs roughly parallel along the boundary line between Gunn's property and the Rielys' property, and ends near the common corner shared by parcels 1, 2, and 3. The grassy path is entirely on Gunn's property and is about 75 feet from the boundary line with the Rielys' property.

¶ 4 Between 2000 and 2009, the Rielys used the grassy path to access parts of their property. During that time, Gunn repeatedly told the Rielys that they did not have the right to use the grassy path and that they were not welcome on his land. The Rielys continued to tell Gunn that they believed that they had a right to use the path. In the spring of 2008, Gunn went to the courthouse to inspect the deeds and determined that the Rielys did not have an easement of record. Also in 2008, the Rielys asked to purchase an easement from Gunn, but he declined.

¶ 5 In 2009, the Rielys hired Oasis Well Drilling to build a well on their property near the common corner. The Rielys directed Oasis to use the grassy path for access to the Rielys' property. When the Rielys directed Oasis to use the grassy path, they were aware that Oasis planned to cut trees on the grassy path to get to the drill site. Oasis cut down approximately 107 of Gunn's trees along the grassy path to make room for the equipment needed to drill the well.

¶ 6 Gunn filed his complaint for timber trespass in 2010 and his amended complaint in 2013. In Gunn's amended complaint, he alleged that the Rielys came onto his property and injured trees; that the Rielys knew that they did not have the right to be on his property; and that Gunn was entitled to damages pursuant to the timber trespass statute , RCW 64.12.030,¹ OR IN THE ALTERNATIVE, THE WASTE STATUTE, RCW 4.24.630.²

¶ 7 In their answer to Gunn's complaint, the Rielys stated that (1) they had “certain easement rights” over the grassy path; and (2) Gunn's injuries were caused by someone else not under the control, supervision, or direction of the Rielys. For the first time in their trial brief, the Rielys argued that Oasis was liable for the damage to the trees and that they held an implied easement over the grassy path.

¶ 8 The case was heard in a two-day bench trial. The parties stipulated to the value of the cut trees ($153 total).

¶ 9 At trial, Gunn moved in limine ³ to exclude the Rielys' argument that Oasis was liable, and to prevent the Rielys from bringing a quiet title action to establish an implied easement because the Rielys did not plead these claims and Gunn did not have notice of these claims. With regard to the argument that Oasis was liable, the Rielys argued that while they did not specifically plead it or disclose it in discovery, Gunn was on notice that the Rielys would argue that Oasis was liable because Gunn knew that Oasis built the well. The trial court ruled that it would allow the Rielys to present evidence relevant to the wrongfulness of the tree cutting, but the fault of a nonparty must be affirmatively pleaded and because it was not, the trial court would not determine whether Oasis was liable.

¶ 10 With regard to the implied easement issue, the Rielys argued that their pleadings implied that they would bring a quiet title action because their affirmative defense was based on their belief that they held an easement. The trial court ruled that the Rielys could prove their defense, but that they could not bring a quiet title action because it had not been pleaded. The Rielys then requested a continuance to amend their pleadings to add a claim for a quiet title action based on an implied easement, and the trial court denied the request.

¶ 11 The trial court found the Rielys liable for damages for timber trespass to Gunn under the waste statute, RCW 4.24.630. The trial court ruled that:

The essence of the claim here is damage to the land, not to the trees. The value of the trees is the smallest component of damages and trebling it is really useless in terms of restoring to Mr. Gunn what he has lost. That doesn't do it, can not [sic] do it.

So I do not find that the timber trespass statute [RCW 64.12.030] is designed to or in effect does provide liability for damages that are suffered in this case.

Verbatim Report of Proceedings (VRP) at 238–39. The court awarded the following damages: $1,359 (the value of the cut trees, $153, trebled; and cost of restoration, $300, trebled), investigative costs for the survey work ($3,294), costs ($418.60), and attorney fees ($17,500). The trial court also cleared Gunn's title of any claim of easement of record over the grassy path. The Rielys moved for reconsideration, arguing that the applicability of the timber trespass statute precluded a damage award under the waste statute. The trial court denied the motion, stating that awarding damages under RCW 64.12.030 would be an “improper application” of the statute. Clerk's Papers at 47. The Rielys appeal.

ANALYSIS

¶ 12 The Rielys argue that the trial court erred by (1) awarding damages under the waste statute (RCW 4.24.630) and not the timber trespass statute (RCW 64.12.030); (2) refusing to consider the Rielys' argument that Oasis was liable; and (3) determining that the Rielys failed to plead a quiet title action.⁴ We hold that (1) the trial court erred when it awarded damages under the waste statute, RCW 4.24.630, rather than under the timber trespass statute, RCW 64.12.030; and (2) the trial court did not abuse its discretion in not considering the Rielys' argument that Oasis was liable. We do not address the Rielys' argument that the trial court erred in determining the Rielys failed to plead a quiet title claim.

A. Actions under RCW 4.24.630 and RCW 64.12.030

¶ 13 The Rielys argue that the trial court improperly awarded damages under the waste statute because the waste statute does not allow for recovery when the plaintiff is entitled to damages under the timber trespass statute. We agree.

¶ 14 The trial court awarded damages under the waste statute because it found that the timber trespass statute would be “useless in terms of restoring to Mr. Gunn what he has lost.” VRP at 239. However, we determine the proper application of a statute based on carrying out the legislature's intent, not by the desired amount of damages. See Jongeward v. BNSF Ry. Co., 174 Wash.2d 586, 592, 278 P.3d 157 (2012). As a matter of law, the trial court erred by awarding damages under the waste statute because the waste statute does not provide damages when the timber trespass statute does.

¶ 15 Under which statute Gunn can recover damages is a question of statutory interpretation. We review the meaning of a statute de novo. Jongeward, 1.74 Wn.2d at 592. Our fundamental objective is to ascertain and carry out the legislature's intent. Jongeward, 174 Wash.2d at 592, 278 P.3d 157. “If a statute's meaning is plain on its face, we must ‘give effect to that plain meaning as an expression of legislative intent.’ ” Jongeward, 174 Wash.2d at 594, 278 P.3d 157 (quoting Dep't of Ecology v. Campbell & Gwinn, LLC, 146 Wash.2d 1, 9, 43 P.3d 4 (2002)). “If a statute remains ambiguous after a plain meaning analysis, it is appropriate to resort to interpretive aids, including canons of construction and case law.” Jongeward, 174 Wash.2d at 600, 278 P.3d 157.

¶ 16 Here, we must determine whether damages are provided for under the timber trespass statute, RCW 64.12.030. If damages are provided for under the timber trespass statute, then the waste statute, RCW 4.24.630, does not apply.⁵

¶ 17 The waste statute, RCW 4.24.630, reads as follows:

(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.... 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...