Hill v. Cox

• Decision Date: 26 February 2002
• Docket Number: No. 20074-4-III.,20074-4-III.
• Court: Washington Court of Appeals
• Parties: David C. HILL, a single person, Respondent, v. Gale COX, Personal Representative of the Estate of Waltraut Cox, Deceased, Appellant, v. James F. Attwood and Billy Attwood, a marital community and Tom Hoffman and Shelly Hoffman, a marital community, Third Party Defendants.

41 P.3d 495

110 Wash.App. 394

David C. HILL, a single person, Respondent, v. Gale COX, Personal Representative of the Estate of Waltraut Cox, Deceased, Appellant, v. James F. Attwood and Billy Attwood, a marital community and Tom Hoffman and Shelly Hoffman, a marital community, Third Party Defendants.

No. 20074-4-III.

Court of Appeals of Washington, Division 3, Panel Two.

February 26, 2002.

Roland L. Skala, Weeks & Skala, Yakima, for Appellant.

David P. Boswell, Spokane, for Respondent.

BROWN, A.C.J.

Gale Cox, as personal representative of the Waltraut Cox Estate, entered into a real estate contract with David C. Hill to sell wooded real property including a small cabin and spring. To facilitate the sale, Mr. Cox executed a timber agreement reserving certain logging rights, but none within 100 feet of the cabin. Loggers engaged by Mr. Cox cut 12 trees within the proscribed limit. Mr. Hill sued. During pretrial proceedings in which Mr. Cox participated, Mr. Hill was granted summary judgment on liability and the measure of damage. Before trial, Mr. Cox died. A jury awarded Mr. Hill $47,000. The trial court trebled damages to $141,000 under RCW 64.12.030. The Estate alleged trial court error in (A) not requiring Mr. Hill to elect his remedies earlier, (B) granting summary judgment on liability and the measure of damage, which led to trebling, (C) instructing on damage, (D) commenting on the evidence during jury orientation, (E) failing to dismiss due to lack of participation by Mr. Hill's "silent partners," (F) failing to excuse a juror for cause (abandoned), and (G) failing to order a new trial or reduce the verdict. We affirm, and award attorney fees to Mr. Hill.

FACTS

On June 4, 1996, Mr. Cox, as personal representative for his deceased wife's estate, and Mr. Hill executed a real estate contract. Mr. Hill purchased 20 acres of remote, forested property in Okanogan County, containing a cabin and spring. To facilitate the sale, the parties entered into a timber agreement, permitting Mr. Cox to "selectively log" the property within 5 years from the date of closing but not within 100 feet of the spring or cabin. Clerk's Papers (CP) at 20. The agreement required the property be "`parked out' as much as possible to maintain pleasant and natural surroundings." CP at 20. The parties negotiated using a professional forester's Forest Management Plan recommending the property be commercially thinned.

On July 8, 1996 after executing the real estate contract, Mr. Hill executed what he described as a "silent" partnership agreement with Richard Meyer and Carl R. Page, regarding the purchase and use of the 20 acres. The property was allowed to remain in Mr. Hill's name for "financial administration" and specified the parties desire to pursue their "mutual interest in the Great Outdoors and the many opportunities to enjoy it that are available in this unique and beautiful area." CP at 581-82.

Mr. Cox logged the property during the winter of 1997, engaging the services of two loggers. Mr. Hill was unable to access the property during this time. In May 1997, Mr. Hill found much timber had been cut, including 12 trees within 100 feet of the cabin. Initially, Mr. Hill's counsel sent a demand letter. The Estate's former attorney responded with a letter stating "on behalf of my client, I acknowledge responsibility for any trees being cut within 100 feet of the cabin or spring." CP at 197. For summary judgment, and at trial, the loggers related they were aware of the timber agreement, but Mr. Cox ordered them to cut trees around the cabin. When deposed, Mr. Cox agreed the 12 trees were improperly cut, but denied responsibility. Basically, Mr. Cox blamed the loggers, denying he told them to cut the 12 trees, but acknowledged he directed them to cut more trees around the cabin.

Mr. Hill withheld payments on the real estate contract, so the Estate sent a notice of intent to declare forfeiture. Then, Mr. Hill sued the Estate on multiple theories, sought to enjoin the forfeiture action, and agreed to make the payments to the court registry. The trial court granted the injunctive relief. Later, Mr. Hill successfully requested summary judgment to establish liability, the character of the trees as ornamental, and the corresponding measure of damage, leading to trebling under RCW 64.12.030.

Initially, the Estate unsuccessfully cross-petitioned for summary judgment to compel Mr. Hill to elect between a common law remedy and a statutory remedy and declare whether he was proceeding under RCW 4.24.630 (liability for damage to land and property) or RCW 64.12.030 (damages for injury to or removing trees). Later, the Estate sought dismissal because Mr. Hill's partners, Mr. Meyer and Mr. Page, were not parties. Instead, the trial court joined the partners as involuntary plaintiffs, who were later defaulted. Finally, the Estate brought in the loggers as parties alleging responsibility for the damage; the trial court severed those issues for separate trial, allowing this matter to proceed to trial with liability established and to establish damages.

During voir dire, the Estate's attorney unsuccessfully challenged Juror No. 14, for cause. Counsel later exercised a peremptory challenge and removed the juror.

During trial, the Estate's expert estimated damages at $3,185 for restoring and replacing the 12 trees. Mr. Hill's expert estimated those damages at $121,372.80. The jury awarded Mr. Hill $47,000. The Estate unsuccessfully requested judgment as a matter of law, or, in the alternative, a new trial, or, in the alternative, remittitur. The court then entered judgment, tripling Mr. Hill's damages to $141,000. This appeal followed.

ANALYSIS

A. Timeliness of Electing Between Remedies

The issue is whether the trial court erred in denying the Estate's summary judgment request to compel Mr. Hill to earlier elect his remedies. The Estate argues the court should have compelled Mr. Hill in January 1999 to elect between his statutory and common law remedies, instead of allowing that decision in December 2000.

We review a denial of a summary judgment motion de novo. Hertog v. City of Seattle, 138 Wash.2d 265, 275, 979 P.2d 400 (1999)

. Summary judgment is proper if, viewing the facts in the light most favorable to the nonmoving party, no genuine issues of material fact exist and the moving party is entitled to judgment as a matter of law. CR 56(c); Hertog, 138 Wash.2d at 275,

979 P.2d 400.

A landowner suffering a timber trespass must elect to pursue either a common law or statutory remedy. Birchler v. Castello Land Co., 133 Wash.2d 106, 112, 942 P.2d 968 (1997). However, Mr. Hill did elect his remedy two months before trial and the Estate points to no resulting prejudice; without authority it merely argues it should have been earlier. Generally, we will not consider assignments of error unsupported by citation of authority. RAP 10.3(a)(5); State v. Farmer, 116 Wash.2d 414, 433, 805 P.2d 200, 13 A.L.R.5th 1070 (1991). Accordingly, the Estate's arguments are unpersuasive.

B. Summary Judgment Issues

Generally, the issue is whether the trial court erred when deciding reasonable minds could not differ regarding the material facts bearing on liability when granting Mr. Hill's request for partial summary judgment on those issues. Specifically, the Estate contests whether as a matter of law the trial court properly concluded (1) the Estate rather than the loggers were liable, (2) the 12 trees were ornamental rather than commercial, triggering a higher measure of damage, and (3) whether trebling of damages was warranted under RCW 64.12.030.

The standard of review remains de novo. Hertog, 138 Wash.2d at 275,

979 P.2d 400. A material fact is one upon which all or part of the outcome of the litigation depends. Ruffer v. St. Frances Cabrini Hosp., 56 Wash.App. 625, 628, 784 P.2d 1288 (1990). The moving party must initially meet the burden of showing no material fact issues remain, with the trial court resolving all reasonable inferences in favor of the nonmoving party. Id. This burden is met when the trial court is convinced reasonable persons could reach but one conclusion or could not differ about the alleged fact. Id. When this burden is met then the burden shifts to the nonmoving party to properly relate specific facts indicating an issue for trial. Id. The nonmoving party's burden is not met by responding with conclusory allegations and/or argumentative assertions regarding the existence of unresolved factual issues. Id.

Preliminarily, we consider the Estate's contention made for the first time after Mr. Hill rested that Mr. Cox owned the trees rather than the Estate, so no trespass by the Estate could occur. The court denied the Estate's request for dismissal, finding "there's no evidence here that Mr. Cox was participating in any way other than as the personal representative of the estate of his deceased wife." RP at 448. We agree with the trial court. Moreover, the Estate proceeded with its evidence after its motion was denied. Once a defendant puts on a case, any challenge to the sufficiency of the evidence before the court at that time is waived. Carle v. McChord Credit Union, 65 Wash. App. 93, 97 n. 3, 827 P.2d 1070 (1992) (citing Goodman v. Bethel Sch. Dist. No. 403, 84 Wash.2d 120, 123, 524 P.2d 918 (1974)). Thus, the Estate waived challenge based upon Mr. Hill's case in chief.

Another preliminary matter is the summary judgment order, which included findings after a recitation of the matters considered before the order. Of course, findings are "superfluous" in summary judgment orders given the de novo nature of review and "will not be considered" on review. Donald v. City of Vancouver, 43 Wash.App. 880, 883, 719 P.2d 966 (1986). However, here the trial court clearly indicated "reasonable minds could not differ upon [these facts] and that no genuine issue of material fact exists [regarding them]." CP at 386. Thus, the findings are...