Szymanski v. Brown, Docket No. 186642

• Decision Date: 07 February 1997
• Docket Number: Docket No. 186642
• Citation: 562 N.W.2d 212,221 Mich.App. 423
• Parties: Walter SZYMANSKI, Plaintiff-Appellee/Cross-Appellant, v. David D. BROWN, Defendant-Appellant/Cross-Appellee.
• Court: Court of Appeal of Michigan — District of US

Page 212

562 N.W.2d 212

221 Mich.App. 423

Walter SZYMANSKI, Plaintiff-Appellee/Cross-Appellant, v. David D. BROWN, Defendant-Appellant/Cross-Appellee.

Docket No. 186642.

Court of Appeals of Michigan.

Submitted Dec. 10, 1996, at Grand Rapids.

Decided Feb. 7, 1997, at 9:25 a.m.

Released for Publication April 29, 1997.

Ronald W. Powers, Petoskey, for plaintiff-appellee/cross-appellant.

Read & Sharp by John W. Sharp and Douglas J. Read, Traverse City, for defendant-appellant/cross-appellee.

Before HOOD, P.J., and NEFF and M.A. CHRZANOWSKI ^*, JJ.

NEFF, Judge.

In this action for intentional trespass, M.C.L. § 600.2919(1); M.S.A. § 27A.2919(1), defendant appeals as of right the trial court's judgment awarding plaintiff $111,000 in damages; denying defendant's motion for a new trial or, in the alternative, remittitur; and partially granting plaintiff's motion for attorney fees pursuant to the offer of judgment rule, MCR 2.405. Plaintiff cross appeals, challenging the trial court's exclusion of certain evidence and the denial of plaintiff's motion for sanctions pursuant to M.C.L. § 600.2591; M.S.A. § 27A.2591. We remand this case to the trial court for remittitur. In all other respects, we affirm.

I

Plaintiff and defendant own adjacent parcels of property in Emmet County. Plaintiff uses his property as a nature preserve and claims to derive aesthetic and spiritual satisfaction from visiting the property and observing nature in a pristine state. In September 1991, defendant trespassed on plaintiff's land with a bulldozer and created two intersecting shooting lanes and blinds for the purpose of hunting deer. In doing so, defendant destroyed more than five hundred mature trees, removed topsoil, and otherwise scarred the earth.

Plaintiff filed an action for intentional trespass, seeking treble damages pursuant to statute. M.C.L. § 600.2919(1); M.S.A. § 28.2919(1). In response, defendant raised the affirmative defense that any "trespass was causal [sic] and involuntary." Specifically, defendant stated that he had probable cause to believe that the land on which the trespass was committed was his own.

Discovery continued, and defendant eventually withdrew his affirmative defenses. Pursuant to a motion in limine by defendant, the trial court excluded all evidence not relevant to the issue of damages.

At trial, plaintiff presented evidence regarding the unique biological diversity on his property. Estimates regarding the cost of restoration ranged from $5,400 to $84,705. The jury assessed plaintiff's actual damages at $37,000. The trial court trebled this figure and entered judgment for $111,000.

II

Defendant first argues that the trial court abused its discretion in denying his motions for a mistrial and a new trial because plaintiff's counsel sought to inflame the jury by eliciting prejudicial testimony from witnesses and by making improper comments during closing remarks. When reviewing such an argument, we must first determine whether the challenged conduct of the attorney was in fact error and, if so, whether it was harmless. Reetz v. Kinsman Marine Transit Co., 416 Mich. 97, 102-103, 330 N.W.2d 638 (1982).

If the claimed error was not harmless, the court must then ask if the error was properly preserved by objection and request for instruction or motion for mistrial. If the error is so preserved, then there is a right to appellate review; if not, the court must still make one further inquiry. It must decide whether a new trial should nevertheless be ordered because what occurred may have caused the result or played too large a part and may have denied a party a fair trial. If the court cannot say that the result was not affected, then a new trial may be granted. Tainted verdicts need not be allowed to stand simply because a lawyer or judge or both failed to protect the interests of the prejudiced party by timely action. [Id. at 102-103, 330 N.W.2d 638.]

With these principles in mind, we now turn to defendant's allegations of misconduct.

Defendant argues that plaintiff's counsel violated the trial court's order on defendant's motion in limine by making comments and eliciting testimony regarding details of the bulldozing. We find no error here. The fact that defendant used a bulldozer, rather than some other form of tree removal, was relevant to the issue of damages because the bulldozer removed the topsoil necessary for regrowth and regeneration of the cleared area. Testimony regarding the weight and manufacturer of the bulldozer was not necessarily related to the issue of damages; however, evidence regarding these details was so inconsequential as to render harmless any error in its admission.

Defendant next argues that plaintiff's counsel improperly suggested to the jury that defendant was arrested by a deputy sheriff. The record does not support this assertion. To the contrary, plaintiff's brother merely testified that he saw defendant speak with the deputy who responded to plaintiff's call for assistance. Although this evidence is irrelevant to the issue of damages, its admission was harmless.

Defendant argues that he was prejudiced by plaintiff's counsel's statement, in the presence of the jury, that defendant had clear-cut his own property, leaving few trees for transplanting to plaintiff's land. It was proper for plaintiff to present evidence regarding the availability of native trees for transplanting; however, evidence of defendant clear-cutting his own property was irrelevant insofar as it suggested that defendant was a bad person. Nonetheless, any resultant prejudice was cured by the trial court's instruction to the jury that defendant's actions on his own property were not relevant to the issue of damages.

Defendant contends that plaintiff's references to a prior trespass on his property was unduly prejudicial. We disagree. There was no suggestion at trial that defendant was the person who previously chopped down some of plaintiff's trees. Moreover, the evidence was relevant to demonstrate the extent of damage done by defendant's use of a bulldozer, rather than a chain saw, to clear the trees on plaintiff's land. We find no error here.

Defendant next challenges the admission of evidence that he hunts deer and that he posted "no trespassing" signs on his own property. Although defendant's hunting activities were irrelevant, the brief reference was harmless. Any potential prejudice from evidence regarding defendant's signs was cured by the trial court's prompt admonition to the jury that such evidence was irrelevant to the issue of damages.

Defendant argues that the closing remarks of plaintiff's counsel were so improper that defendant is entitled to a new trial. We disagree. It is without question that counsel erred in suggesting that the jury take into consideration the intentional nature of defendant's act when determining damages; however, the jury was properly instructed that its role was to compensate plaintiff, not to punish defendant. The jury was also instructed that it was to apply the law as stated by the trial court, not as represented by the arguments of counsel.

In sum, we conclude that the conduct of plaintiff's counsel did not deny defendant a fair trial. Accordingly, the trial court did not abuse its discretion in denying defendant's motions for a mistrial and a new trial.

III

Defendant challenges the following jury instruction regarding the proper measure of damages:

It is your duty to determine the amount of money which reasonably, fairly and adequately compensates plaintiff for the harm done to his property. Generally damages in trespass to land are measured by the difference between the value of the land before the harm and the value of the land after the harm, but there is no fixed, inflexible rule for determining with mathematical certainty what sum shall fairly compensate plaintiff. That's for you to decide. You may consider the cost of repairing the damage done provided that a cost of repair award may not exceed the value of the property before the [in]jury. Whatever approach or approaches you choose to employ in determining the amount of money to be awarded, your verdict must be solely to compensate the plaintiff for the harm done to his property and not to punish the defendant.

The determination whether a jury instruction is applicable and accurately states the law is within the discretion of the trial court. Rice v. ISI Mfg., Inc., 207 Mich.App. 634, 636, 525 N.W.2d 533 (1994). Reversal is not required if, on balance, the theories and the applicable law were adequately and fairly presented to the jury. Id. We will not reverse as a result of an erroneous jury charge unless the failure to do so would be inconsistent with substantial justice. Winiemko v. Valenti, 203 Mich.App. 411, 418, 513 N.W.2d 181 (1994).

Defendant argues that the trial court erred in instructing the jury that it had the option of compensating plaintiff for restoration costs rather than using a diminution in value method. Damages in an action for trespass to land generally are measured by the difference between the value of the land before the harm and the value after the harm. Schankin v. Buskirk, 354 Mich. 490, 494, 93 N.W.2d 293 (1958). However, there is no one fixed, inflexible rule for determining the appropriate sum that will compensate a landowner for the invasion of his interests. Rather, courts are to apply whatever approach is most appropriate to compensate the plaintiff for the loss incurred. Id.; Thiele v. Detroit Edison Co., 184 Mich.App. 542, 545, 458 N.W.2d 655 (1990).

Where, as here, the property destroyed has a unique value of its own, it is appropriate to consider the value of the trees themselves to the contemplated or existing uses of the land, including the cost of replacement or restoration. Schankin, supra at 496, 93 N.W.2d 293. The measure of damages under this theory, however, must not exceed the value of the property before the injury. Kratze v....