Klingshirn v. McNeal

• Decision Date: 14 July 1999
• Docket Number: No. A99A0547.,A99A0547.
• Citation: Klingshirn v. McNeal, 239 Ga. App. 112, 520 S.E.2d 761 (Ga. App. 1999)
• Parties: KLINGSHIRN et al. v. McNEAL.
• Court: Georgia Court of Appeals

520 S.E.2d 761

239 Ga. App. 112

KLINGSHIRN et al. v.McNEAL.

No. A99A0547.

Court of Appeals of Georgia.

July 14, 1999.

Certiorari Denied October 22, 1999.

Smith, Welch, Studdard & Brittain, Thomas B. McFarland, McDonough, for appellants.

Mumford, Myers & Mooney, Albert A. Myers III, Conyers, for appellee.

POPE, Presiding Judge.

Carol McNeal brought an action against Mike and Sherri Klingshirn and the Klingshirns' contractor, David McClure, for damages resulting from the removal by McClure of trees from McNeal's land.Following a bench trial, the court in a thorough order awarded damages in favor of McNeal and against the Klingshirns who now appeal.

The court found that McNeal and the Klingshirns owned adjacent property and that the portion of McNeal's property immediately adjacent to the Klingshirns' was outside a fence that McNeal had constructed on her property at some time in the past.Mike Klingshirn hired McClure to cut and remove certain trees on his property, and the court found that Klingshirn erroneously told McClure to cut all the trees up to the fence.McClure removed the trees as instructed, including eight loblolly pine trees located on McNeal's property.The court found that Klingshirn's error was his good faith misunderstanding concerning the exact location of the property line when he instructed McClure what trees to cut.

At the close of McNeal's case, the court granted McClure's motion for involuntary dismissal on the ground that McNeal failed to show any right to relief against him.McClure remained a third-party defendant of the Klingshirns' claim for indemnification.Two weeks after trial, the court issued its final order finding the Klingshirns liable for trespass resulting in damage to realty in the amount of $9,800 plus court costs.

1.The Klingshirns first contend the court erred in denying their request for involuntary dismissal on liability.In granting McClure's motion the court held, "The evidence produced by the plaintiff, with all reasonable deductions therefrom, failed to show a claim against the defendantDavid McClure."The Klingshirns assert that because the court granted McClure's motion, they could not be liable as a matter of law because the trespass claim against them was dependent on a trespass claim against McClure, i.e., the person who directed the cutting cannot be held liable without a finding of the actual perpetrator's liability.The Klingshirns rely on Pickron v. Garrett,73 Ga.App. 61, 35 S.E.2d 540(1945).

But McClure was a contractor who performed his work according to the instructions he was given.

[W]here a contractor who does not hold itself out as an expert in the design of work such as that involved in the controversy, performs its work without negligence, and the work is approved and accepted by the owner or the one who contracted for the work on the owner's behalf, the contractor is not liable for injuries resulting from the defective design of the work.

David Allen Co. v. Benton,260 Ga. 557, 558, 398 S.E.2d 191(1990).See alsoGroves v. City of Atlanta,213 Ga.App. 455, 457(1), 444 S.E.2d 809(1994)(public works project);Jasper Constr. Co. v. Echols,198 Ga.App. 127, 128, 400 S.E.2d 660(1990)(same).Instead, the contractor's employer is liable.Id.;OCGA § 51-2-5.Further, "an unintentional and nonnegligent entry onto another's land does not automatically subject an individual to liability even though the entry causes harm to the possessor.Brand v. Montega Corp.,233 Ga. 32, 209 S.E.2d 581."C.W. Matthews Contracting Co. v. Wells,147 Ga.App. 457, 458(1), 249 S.E.2d 281(1978).

The court's dismissal of the claims against McClure was consistent with a finding that McClure performed the contract without negligence at Klingshirn's direction, and that as a result he entered McNeal's land in an unintentional and nonnegligent manner.This finding does not mean that the trespass did not occur or that the Klingshirns are not liable for having directed McClure to cut the trees.Pickron v. Garrett is distinguishable in that it did not involve an employer/contractor relationship.

2.The Klingshirns contend the court's judgment was contrary to its ruling at the close of McNeal's case dismissing any claim for damages under a theory of trespass.However, after the court's ruling, counsel for the Klingshirns urged the court to consider additional case law before deciding what types of damages were recoverable, and the court agreed to look at the matter more closely and stated that its rulings were subject to further research.The written order on the motions made at the end of McNeal's case indicated that the court was reserving ruling on the Klingshirns' motions.We see no error.

3.The Klingshirns assert there was no competent evidence to support the damage award.

If the owner sues upon the theory of a trespass to the realty, the measure of damage is the diminution in the market value of the real estate, unless the value of the trees at the time and place of their being felled, plus any incidental damage to the land itself, exceeds the diminution in the market value of the realty[,] in which event the higher measure is allowable.

Milltown Lumber Co. v. Carter,5 Ga.App. 344, 345(2)(a), 63 S.E. 270(1908).AccordWestern &c. R. Co. v. Tate,129 Ga. 526, 531(5), 59 S.E. 266(1907);Southern R. Co. v. Crowe,186 Ga.App. 244, 245-246(1), 366 S.E.2d 846(1988).¹

The court heard evidence from McNeal on the diminution in the value of her land, expert testimony concerning the value of the lost trees, and evidence of incidental damages including the cost to remove the stumps and related work.The court chose to award the value of the lost trees plus incidental costs after determining that those damages exceeded the diminution in value of the property.

The Klingshirns argue that the damage calculation cannot be performed without evidence of the diminution in value and that McNeal's evidence on this point was so inconsistent that it cannot be considered."The testimony of a witness that he is familiar with the value of the item in question is sufficient foundation to allow evidence as to value."Varnedoe v. Singleton,154 Ga.App. 332, 268 S.E.2d 387(1980);OCGA § 24-9-66.Findings by the court after a non-jury trial "shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses."OCGA § 9-11-52(a)."`Thus, an appellate court will not disturb fact findings of a trial court if there is any evidence to sustain them.'"Maynard v. State of Ga.,217 Ga.App. 344, 346, 457 S.E.2d 253(1995).

On the first day of trial McNeal failed to give any testimony regarding diminution in value.McNeal closed her case that day, but the subsequent motion hearing and lengthy discussion about damages led the court to grant McNeal's request to reopen the evidence.The case was continued for two months, and upon reconvening, McNeal testified to a loss in value as a result of the loss of trees of between $4,000 and $5,000.The fact that she had more information about the value is attributable to the two months of intervening time.

4.The Klingshirns also urge that there was no evidence of the value of the trees at the time and place of being felled as required by Milltown Lumber Co. v. Carter.Although two experts testified for the plaintiff about the value of the trees, the Klingshirns argue the experts testified about the wrong type of value, i.e., the replacement value and the shade tree value, rather than the timber value at the time the trees were cut.CompareSouthern R. Co. v. Crowe,186 Ga.App. at 245(1), 366 S.E.2d 846(timber value);Ga. R. &c. Co. v. Flynt,93 Ga.App. 514, 524(6), 92 S.E.2d 330(1956)(replacement costs are for buildings, fences and other improvements);Louisville &c. R. Co. v. Kohlruss,124 Ga. 250, 52 S.E. 166(1905)(value of trees goes only to diminution in property value).

Edward Macie, an employee of the United States Forest Service, was qualified as an expert in the field of urban forestry, which he defined as "the care of a multiple system of trees ... for the benefit that they serve society, particularly in an urban community."Macie had experience determining the value of trees growing in urban and suburban environments.He was asked to conduct an appraisal of the value of the trees removed from the property.He made an appraisal of the trees "based on species, their size, their condition and their placement in the landscape."He used a methodology prescribed by an industry group known as the Council of Tree & Landscape Appraisers.The methodology takes into account the cost of a replacement tree but also includes consideration of the size, condition and placement of the trees.Placement of the tree is a factor that includes consideration of how the tree provides separation from adjacent properties, wildlife shelter, shade, and aesthetic value.Based on this analysis, Macie valued the trees at $2,345 each or $18,800 for all eight trees.Macie also explained the difference between the value of trees in an urban or suburban environment and trees that are grown specifically for timber.On cross-examination Macie stated that some of the elements of value that he considered inure to all of society, not the tree owner per se.

Mack Harris, the owner of a tree service business, testified he had experience in "two or three cases" in placing a value on trees.He educated himself on valuing trees by reading materials obtained from the "Forest Department at Georgia University" which came from the "International Shade Tree Conference."The court allowed Harris to testify as an expert regarding forestry, tree care, and the value of trees.Although the Klingshirns objected at trial to allowing Harris to testify as an expert, they do not enumerate that decision as error on appeal.

Harris testified that while pine trees on...