King v. Powell

• Decision Date: 25 February 2004
• Docket Number: No. CA 03-451.,CA 03-451.
• Citation: 85 Ark. App. 212,148 S.W.3d 792
• Parties: Clay D. KING and Patty A. King v. Sandra POWELL.
• Court: Arkansas Court of Appeals

148 S.W.3d 792

85 Ark. App. 212

Clay D. KING and Patty A. King v. Sandra POWELL.

No. CA 03-451.

Court of Appeals of Arkansas, Division II.

February 25, 2004.

Sawyer and Cripps, by: Stephen P. Sawyer, Bentonville, for appellants.

Law Offices of Charles M. Kester, PLC, by: Charles M. Kester, Fayetteville, for appellee.

LARRY D. VAUGHT, Judge.

This is an interlocutory appeal brought under Ark. R. Civ. P. 54(b). Appellee Sandra Powell sued her neighbor, appellant Clay King, for trespass, seeking damages for his destruction of trees and removal of dirt along an old trail on her property. Mr. King and his wife, Patty King, filed a counterclaim against Ms. Powell, claiming a prescriptive easement across her property. Both Mr. King and Ms. Powell alleged that they had entered into an agreement whereby Mr. King would make the trail passable in exchange for giving Ms. Powell access to Beaver Lake. The jury returned a verdict awarding damages to Ms. Powell and finding no prescriptive easement across her land. The jury also found that Mr. King had breached his agreement to give Ms. Powell access to the lake. The trial court granted the Kings' motion for judgment notwithstanding the verdict on their prescriptive easement claim. Mr. King appeals from the award of damages against him, and Ms. Powell argues on her cross-appeal that the trial court erred in granting the Kings' motion for judgment notwithstanding the verdict on their prescriptive-easement claim. We affirm on the direct appeal and reverse on the cross-appeal.

Procedural and Factual History

Ms. Powell purchased her property in 1990, and lived there from 1991 until 1997. The road in dispute runs along the south half of her property and crosses a ravine. When Ms. Powell purchased her land, the culvert over the ravine was no longer passable, and small trees had grown up on the trail, which appeared as if it had not been used for many years. In 1997, the Kings purchased property adjacent to Ms. Powell. There is no dispute that Mr. King and Ms. Powell entered into an agreement whereby she permitted him to remove "three or four trees" to make the roadway passable in exchange for giving her access to the lake. However, Mr. King's changes to her property were far in excess of what Ms. Powell claimed she had agreed upon. One hundred twenty-nine dead trees were piled on Ms. Powell's property, and nine hundred cubic yards of dirt were removed, along with the vegetation. Ms. Powell notified Mr. King that he did not have permission to treat her property in that manner. Even though she demanded that he stop his work on several occasions, he continued to proceed, even after she filed her trespass complaint. The Kings use this roadway for access to their property.

Ms. Powell filed a trespass complaint against Mr. King¹ on April 10, 1998, seeking damages of over $25,000 and treble damages as provided in Ark.Code Ann. § 18-60-102 (Repl.2003). In an amended complaint, Ms. Powell included a request for punitive damages. In response, Mr. King affirmatively raised waiver, estoppel, and adverse possession and alleged that his actions had been with Ms. Powell's permission, in accordance with their agreement. Mr. and Mrs. King alleged in a counterclaim that they had acquired a prescriptive easement across the road.

At trial, the verdict was rendered on interrogatories. The jury found that Ms. Powell had proven that Mr. King trespassed on her property, damaging or destroying trees and displacing or removing stone or soil. It also found that Mr. King did not establish his defense of estoppel. The jury awarded Ms. Powell $5,000 for her trees and $4,950 for the soil and stone. The jury also found that Mr. King's actions were willful or intentional and assessed punitive damages against him in the amount of $25,000. The jury further found that Ms. Powell had proved that Mr. King failed to provide a lake-access easement to which she was entitled by the terms of their agreement. It also found that the Kings had failed to establish their prescriptive-easement claim. The Kings moved for judgment notwithstanding the verdict on their counterclaim. In response, Ms. Powell argued that they had failed to preserve the issue.

The trial court entered judgment of $34,950 ($25,000 in punitive damages and $9,950 in actual damages) on the verdict for Ms. Powell, stating that she had elected to recover actual and punitive damages, rather than treble damages. It also awarded her attorney's fees and completed a certification pursuant to Ark. R. Civ. P. 54(b) for an interlocutory appeal, stating:

[T]he remedy for the defendant Clay King's breach of a contract to provide a lake access easement is distinct from and unrelated to the issues resolved at the trial of this cause which are addressed herein, that the fashioning of a remedy for the Defendant Clay King's breach of a contract to provide a lake access easement will require further proceedings before the court in equity, and the costs to the parties and the cloud over the title of the subject property will ... therefore be minimized if these proceedings on the remedy for Defendant Clay King's breach of a contract to provide a lake access easement do not unnecessarily delay proceedings on the issues already resolved; and that there is no just reason to delay entry of judgment.

Mr. King then moved for judgment notwithstanding the verdict. The trial court entered an order denying Mr. King's motion in all respects except for the issues concerning the prescriptive easement and attorney's fees. It stated:

[T]here was no evidence to substantiate the jury's finding in regard to this [prescriptive easement] issue, and the facts presented did, in fact, establish an easement by prescription across [Ms. Powell's] land, unless abandoned. That a new trial should [be] granted on the issue of whether or not the easement by prescription was abandoned, because said issue was not decided.... [A]ll other provisions of this court's original judgment, not modified herein, shall remain in full force, and effect including the Rule 54B findings and certificate, and including the finding that the remedy for Clay D. King's breach of contract will require further proceedings in this court....

From that order, Mr. King entered his notice of appeal and Ms. Powell filed a notice of cross-appeal.

Direct Appeal

Damages

For his first point on appeal, Mr. King argues that the trial court erred in denying his motion for directed verdict on the issue of damages.² He asserts that the replacement value of the trees, on which Ms. Powell based her evidence, was not the proper measure of damages in this case. Instead, he argues, the proper measure was the difference in the value of the land before and after the occurrence, and no evidence of difference in value was introduced. Mr. King argues that these trees were ordinary trees on a steep hillside, on the far south end of Ms. Powell's property, and not near her home. He also contends that the amount of damages she claimed ($29,050 for the trees and $4,950 for the soil) was grossly disproportionate to the overall value of her property ($39,500).

A directed-verdict motion is a challenge to the sufficiency of the evidence, and when reviewing the denial of a motion for a directed verdict, this court determines whether the jury's verdict is supported by substantial evidence. Superior Fed. Bank v. Mackey, 84 Ark.App. 1, 129 S.W.3d 324 (2003). Substantial evidence is evidence that is of sufficient force and character that it will, with reasonable certainty, compel a conclusion one way or the other, without having to resort to speculation or conjecture. Id. When determining the sufficiency of the evidence, the appellate court reviews the evidence and all reasonable inferences arising therefrom in the light most favorable to the party on whose behalf judgment was entered. Id. A motion for a directed verdict should be denied when there is a conflict in the evidence or when the evidence is such that fair-minded people might reach different conclusions. Fayetteville Diagnostic Clinic, Ltd. v. Turner, 344 Ark. 490, 42 S.W.3d 420 (2001). Under those circumstances, a jury question is presented and a directed verdict is inappropriate. Id. It is not this court's province to try issues of fact; it simply examines the record to determine if there is substantial evidence to support the jury verdict. Id.

The jury instruction given on this issue correctly stated the law as follows:

If the answer to an interrogatory requires you to assess damages against Mr. Clay King in favor of Linda Powell, you will do so in the following manner:

1. If you find that Ms. Powell's intended use of the damaged or destroyed trees was for ornamental or shade purposes, then you will award damages equal to the value of the damaged or destroyed trees, if any, plus the cost of replacing stone or soil displaced or removed, if any.

2. Otherwise, you will award damages equal to the difference in the fair market value of Ms. Powell's property before and after the trespass.

In Worthington v. Roberts, 304 Ark. 551, 803 S.W.2d 906 (1991), the supreme court adopted the rule that, when ornamental or shade trees are injured, the use made of the land should be considered and the owner compensated by damages representing the cost of replacement of the trees. The court explained: "In some instances, for example, tortious destruction of trees might increase its market value but decrease the value of the land for the use made of it by its owner." 304 Ark. at 557, 803 S.W.2d at 910 (emphasis in original). The court held, however, that the evidence in each case will determine whether an instruction on the difference in the value of the land before and after an occurrence or one on the cost of restoration should be given. Accord White River Rural Water Dist. v. Moon, 310 Ark. 624, 839 S.W.2d 211 (1992); Revels v. Knighton, 305 Ark. 109, 805 S.W.2d 649 (1991); Fleece v. Kankey, 77...